Illinois high court: Comcast must reveal anonymous commenter

6-18-15 Illinois:

SPRINGFIELD, Ill. The Illinois Supreme Court has affirmed a lower court opinion ordering Comcast Cable Communications to identify a subscriber who posted an anonymous message suggesting a political candidate molests children.

The court said Thursday that the internet service provider must identify the subscriber who commented on a 2011 article in the Freeport Journal Standard about Bill Hadley's candidacy for the Stephenson County board.

The commenter, who used the online name "Fuboy," wrote that "Hadley is a Sandusky waiting to be exposed" because he can see an elementary school from his home. The comment was an apparent reference to former Penn State football coach Jerry Sandusky who was convicted of child sex abuse in 2012.

Rosin v Monken

3-17-2010 New York, Illinois:

Rosin v Monken

After he was required to register as a sex offender in Illinois, Mitchell Rosin brought suit under 42 U.S.C. § 1983, alleging that the defendants failed to give full faith and credit to the March 27, 2003 judgment of a New York court. In that order, the court accepted a plea agreement that did not require Rosin to register as a sex offender in New York.

He contends that Illinois is constitutionally required to give effect to the New York judgment and thus cannot, on the basis of that order, force him to register as a sex offender within its jurisdiction. The district court granted defendants' motion to dismiss, finding that the registration requirement in the New York order was merely stricken, which left the order silent on the subject.

Since the plea agreement did not purport to prevent any state other than New York from registering Rosin as a sex offender, and because any such provision would have been ineffective even if it had been included, we affirm.

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The purpose of the Full Faith and Credit Clause "was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin." Baker v. General Motors Corp., 522 U.S. 222, 232, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998) (quoting Milwaukee County v. M.E. White Co., 296 U.S. 268, 277, 56 S.Ct. 229, 80 L.Ed. 220 (1935)). By virtue of its "exacting" operation with respect to judgments, the Full Faith and Credit Clause results in "the judgment of the rendering State [gaining] nationwide force." Id. at 233, 118 S.Ct. 657. The primary operational effect of the Clause's application is "for claim and issue preclusion (res judicata) purposes." Id. at 233, 118 S.Ct. 657.

Corey Eason

10-25-2005 Illinois:

When 23-year-old Corey Eason, a small-time central Illinois drug dealer, was paroled from prison for a cocaine dealing conviction in 2002, he was mistakenly classified as a sex offender even though he had never been accused, arrested or convicted of any sex-related offense. As a result, Eason (who was unaware of this error) was listed on Illinois’ sex offender registry, and had his picture posted on the Internet.

Three years later, in March 2005, when Eason was arrested in Bloomington and charged with assault and possession of a controlled substance, his name was found on the sex offender registry. As a result, he was charged with three counts of failing to report a change of address as required by the Illinois Sex Offender Registration Act, and convicted at a bench trial.

In September 2005, at the request of Eason’s attorney, the McLean County Probation Department contacted the Illinois State Police, who maintain the sex offender website, and they looked into Eason’s case. They could not explain why Eason was prosecuted since it was evident from his criminal record, which was available to both prosecutors and defense counsel, that he had never been convicted of a sex offense.

The McLean County prosecutors were also notified of the mistake, and, at a hearing on October 25, 2005, they acknowledged the error. McLean County Circuit Court Judge Ronald Dozier vacated the convictions, saying, “I’m glad we got this straightened out before it got too much further down the line.” Eason received probation on the assault and drug possession charges for which he had been arrested in March, 2005.

Eason’s plan to pursue a civil suit over his ordeal never materialized. In April 2011, he was charged with possession of cocaine with intent to distribute. ..Source.. by Center on Wrongful Convictions

IN RE: DETENTION OF John NEW, Jr

11-20-2014 Illinois:

IN RE: DETENTION OF John NEW, Jr. The People of the State of Illinois, Appellant, v. John New, Jr., Appellee.

At issue in this case is whether the circuit court of Cook County erred in admitting certain expert testimony regarding a diagnosis of hebephilia at respondent's civil commitment trial without first conducting an evidentiary hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (“Frye hearing”) to determine whether the diagnosis had been generally accepted as a valid mental disorder in the relevant scientific community. For the reasons that follow, we hold that the diagnosis of hebephilia is subject to the Frye standards for the admissibility of novel scientific evidence, and that a hearing is necessary in this case to determine its general acceptance.

People v Kayer

UPDATE 2-16-2014: State legislature is now trying to amend law (SB 2912) because of this case (See article below)

5-6-2013 Illinois:

People v Kayer

In July 2011, the State charged defendant, Brian M. Kayer, with unlawful failure to register employment change as a sex offender (730 ILCS 150/6 (West 2010)). In September 2011, defendant pleaded guilty to that offense. In October 2011, the trial court sentenced him to three years' imprisonment.

Defendant appeals, arguing his conviction is void because the loss of his job did not constitute a "change" in his "place of employment" such that he was required to report under section 6 of the Sex Offender Registration Act (Registration Act) (730 ILCS 150/6 (West 2010)).

We agree and vacate defendant's conviction.

... ... ...

17 III. CONCLUSION

¶ 18 We conclude section 6 of the Registration Act did not require defendant to report his loss of employment as a change in his place of employment. Defendant's guilty plea and conviction were based upon actions not constituting a criminal offense.

We vacate defendant's conviction as void.

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Lawmakers consider tweaking sex offender laws

2-5-2014:

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

Illinois lawmakers are considering legislation that would fill in gaps in the state's sex offender laws, including one proposal that would bar convicted sex offenders from attending county fairs.

The twin pieces of legislation were introduced after lawmakers said they encountered holes in the current statutes, the Springfield bureau of Lee Enterprises newspapers reported.

"Attending the county fair is geared more toward families," said state Rep. Mike Smiddy, a Democrat from Port Byron who sponsored one of the bills. "A lot of children are there. They have a lot of children's events, like tractor pulls and stuff, attached to these things. I just don't believe that a registered sex offender should be allowed to go to those areas where children are present."

Smiddy said he introduced the measure at the request of officials in Whiteside County. Sex offenders would still be allowed to attend the state fair if the bill passes. They're already banned from working at county fairs.

The second bill would require convicted sex offenders who lose their jobs to update their registration with state police. The current law only requires sex offenders to notify authorities if they change jobs.

Sen. Jason Barickman, a Bloomington Republican who co-sponsored the bill (SB 2912), said he thinks those who drafted the original law meant to require registered sex offenders to also report the loss of a job.

He said charges against a sex offender were dismissed in McLean County because of ambiguity over when people had to report a change in employment. ..Source.. by

Supreme Court says DuPage man must register as sex offender

Article continues below, first the unfair appellate court decision (See Rule 606(c) Appeal motion dismissed, not as untimely just dismissed). This lower appellate court decision was upheld by the Illinois Supreme court HERE:

12-12-2012 Illinois:

People v Bailey

On March 14, 2007, defendant, Christopher B. Bailey, entered an open guilty plea to the offense of criminal sexual abuse, and the trial court sentenced him to 300 days, with credit for time served. On October 7, 2010, defendant filed a motion to vacate his plea and sentence as being void. The State filed a response, arguing against the motion, but it did not challenge the timeliness of the motion. The trial court denied the motion on January 28, 2011.

Defendant filed a notice of appeal on February 25, 2011, appealing the denial of his motion to vacate his plea and sentence. He raises the following issues:

• (1) whether the trial court had jurisdiction (and therefore this court has jurisdiction) to rule on his untimely motion to vacate, pursuant to the revestment doctrine, and
• (2) whether the cause must be remanded for further proceedings on his motion because his trial counsel failed to file a certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).

The State responds that the trial court was not revested with jurisdiction and thus this court lacks jurisdiction.
We agree with the State and dismiss the appeal.

BACKGROUND

¶ 3 The offense to which defendant pled guilty arose from consensual sex between the 17–year–old defendant and his 16–year–old girlfriend. See 720 ILCS 5/12–15(c) (West 2006). The State requested, among other things, that the trial court sentence defendant to two years of sex offender probation and order defendant to undergo a sex offender evaluation, to register as a sex offender, and to submit to HIV and STD testing.

After the trial court sentenced defendant, an unidentified speaker, presumably either defense counsel or the prosecutor, asked: “Judge, is there any sentence regarding [sex offender] registration?” The judge replied: “No[,] * * * I think my sentence was fair and appropriate based upon what's going on.

He's going to be on mandatory supervised release on the parole anyway.” The court then determined that defendant had been incarcerated since September 2006 and stated, “we have plenty of time to * * * handle this another way.” Defendant acknowledged that he had read a notice of his appeal rights, discussed those rights in great detail with his counsel, understood them, and had no questions about them. Defendant did not file any timely postjudgment motions following sentencing.

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Continuation of Article date 2-6-2014
A DuPage County man has to remain on the state sex offender registry after his bid to remove himself was rejected by the Illinois Supreme Court Thursday.

Christopher Bailey of Clarendon Hills pleaded guilty in 2007 to sexual assault involving his 16-year-old girlfriend when he was 17.

Bailey, now 25, argued the judge in the original case told him he didn't have to register as a sex offender. But when he was forced to do so in 2010, Bailey asked that his original sentence be tossed out.

The Supreme Court Thursday voted unanimously to reject that request, calling it "untimely." The court ruled that too much time had passed between Bailey's sentencing and his bid to overturn it.

"We're pleased that the court's decision clarifies a specific area of Illinois law" concerning the timeliness of cases like this one, said Maura Possley, a spokeswoman for Attorney General Lisa Madigan's office.

Bailey is being held in DuPage County Jail, having been charged with failing to register as a sex offender. His attorney, Jaime Montgomery, said Bailey doesn't have further options for appeal. ..Source.. by Marty Hobe

Sex offender asked to move away from La Grange schools

ACLU where are you?

11-4-2013 Illinois:

LA GRANGE – A convicted sex offender has been asked to move because he is living within 500 feet of two schools.

La Grange police notified him that he wasn’t in compliance with state law, even though he is no longer required to register as a sex offender 10 years following a conviction.

Chief Michael Holub said police were aware of his 1989 conviction and that he had fully complied with registration procedures required by laws subsequently passed.

He pleaded guilty in 1989 to having sex with a 13-year-old girl when he was 28 years old in DuPage County.

The Cook County State’s Attorney’s Office had been asked to determine whether he remained on a deed to the property where he lives, which would have exempted him as a property owner from moving. He isn’t listed as an owner on the property, and amendments to the statute apply to him, who is barred from living within 500 feet as a convicted sex offender, the state’s attorney’s office determined.

His residence is across the street from Ogden Avenue School on the northeast corner of Ogden and Waiola avenues, and St. Francis Xavier School on the southeast corner of the intersection.

Holub said he requested and will be given a reasonable amount of time to relocate.

“He has paid his debt to society and wants to remain in compliance,” Holub said.

Police aren’t concerned about him with trick-or-treaters being out for Halloween, Holub said. ..Source.. by The Doing

US v Goodwin

5-8-2013 Illinois:

US v Goodwin
No. 12-2921.

Charles Goodwin pleaded guilty to knowingly failing to register and update a registration as a sex offender, as required by the Sex Offender Registration and Notification Act ("SORNA"). He was sentenced to 27 months' imprisonment, to be followed by a life term of supervised release, subject to ten special conditions.

Goodwin claims that the relevant SORNA provision is an unconstitutional delegation of legislative authority; argues that the district court committed plain error by miscalculating his advisory Sentencing Guidelines range for supervised release and then imposing a sentence within that miscalculated range; and challenges four conditions of his supervised release.

We find his nondelegation claim unpersuasive, and therefore affirm his conviction. We further hold that the erroneous calculation of the advisory Guidelines range and the imposition of special conditions without explanation by the district court or support in the record warrant vacating his sentence and remanding to the district court for resentencing.

... ... ...

Goodwin argues that his deprivation of expressive material under Conditions 6 & 7 violates his First Amendment rights. Since we vacate these conditions on other grounds, we need not reach this constitutional question. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (19836) (Brandeis, J., concurring).

6. Other Conditions
Goodwin's objections to the special conditions that the district court imposed focus exclusively on Conditions 4-7. We wonder why he has not objected to Conditions 8 and 10 as well. These two conditions require him to participate (at his own expense) in sex offender treatment and mental health counseling, respectively, "as deemed necessary by the probation officer." As with the other special conditions, the district court imposed these conditions without explanation.

We note once again that each special condition imposed must be tailored to Goodwin and his needs, see Angle, 598 F.3d at 360-61, and involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation, see Holm, 326 F.3d at 876. Given that Goodwin's instant offense is for a failure to register, the penological purpose of these treatment and counseling programs is far from clear.

Courts of appeals ordinarily abstain from considering issues sua sponte. See Wood v. Milyard, 132 S.Ct. 1826, 1834 (2012). Nonetheless, "[w]hen in a criminal appeal the court of appeals notices a plain error, it can reverse even if the appellant had not drawn the error to the court's attention." United States v. Gutierrez-Ceja, 711 F.3d 780, 784 (7th Cir. 2013). Here, we are unable to discern any connection between Goodwin's offense and the purposes that sex offender treatment and mental health counseling typically serve. Thus, Conditions 8 and 10 require additional consideration on remand, for similar reasons as explained in our discussion of Conditions 4-7.

III. CONCLUSION.

For the foregoing reasons, we AFFIRM Goodwin's conviction, VACATE the supervised release portion of his sentence, and REMAND to the district court for resentencing consistent with this opinion. The resentencing shall be limited to a reassessment of the length of Goodwin's supervised release and any special conditions imposed during this period.

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US -v- Robinson

4-9-2013 Illinois:

US -v- Robinson
No. 12-2015

A jury convicted the defendant of possessing child pornography, and the judge sentenced him to 108 months in prison (to be followed by a 10-year term of supervised release) after increasing his base offense level by 15 levels. At issue are two of the 15 levels—a two-level enhancement that the guidelines prescribe if the defendant, though not charged with the separate offense of distributing child pornography, had in fact distributed the pornography that he possessed. U.S.S.G. § 2G2.2(b)(3)(F). This adjustment, which the judge thought applicable to the defendant, raised the defendant's guidelines sentencing range from 108 to 135 months to 135 to 168 months. But as the statutory maximum for the offense of possession was only 120 months at the time of the offense, see 18 U.S.C. § 2252(a)(4)(B) (2011), the judge could not sentence him within the higher range. The sentence of 108 months that the judge imposed was the floor of the lower range. (The judge could have given him an even lower sentence; there is no statutory minimum sentence for possession of child pornography.) If as the defendant argues the two-level increase for distribution was error, he is entitled to be resentenced, because the increase in the guideline range may have influenced the sentence that the judge gave him.

"Distribution" in the guideline is a term of art, because it includes not only what a lay person would describe as "distribution" but also "posting material . . . on a website for public viewing," U.S.S.G. § 2G2.2, application note 1, whether or not anyone actually views it. The defendant admitted in an interview by police to having downloaded quantities of child pornography through two peer-to-peer file-sharing computer programs, FrostWire and LimeWire, but he denies knowing that the files he downloaded could be viewed by other users of the programs.

The government denies that such knowledge is an element of the distribution guideline; it points out that the guideline does not specify that the defendant have acted knowingly. But we agree with the Eighth Circuit's decision in United States v. Durham, 618 F.3d 921, 926-27 (8th Cir. 2010)—and thus disagree with the recent decision by the Tenth Circuit in United States v. Ray, 704 F.3d 1307, 1311-12 (10th Cir. 2013), which, surprisingly, does not cite or mention Durham—that the sentencing judge must find that the defendant either knew, or was reckless in failing to discover, that the files he was downloading could be viewed online by other people. It's true that by making child pornography accessible by other persons, even if unknowingly, a defendant may (if other persons do in fact access his files of child pornography—we don't know whether anyone did in this case) magnify the harm. See United States v. Laraneta, 700 F.3d 983, 991-92 (7th Cir. 2012). But strict liability is disfavored in the criminal context.

We are dealing with a 61-year-old man in very poor health who will receive a stiff prison sentence even if we vacate the current one, and who on release will be at low risk of recidivating because of the restrictions on access to online material that the conditions of supervised release (not challenged by him) impose. The judge told him at sentencing: "I don't think that you will ever do this again because you're not going to have the opportunity to do it again. Even when you get out, you're going to be under supervised release for a considerable period of time in which you will be monitored"—in fact 10 years.

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The government has, we conclude, clearly failed as yet to prove that the defendant knowingly made files of child pornography available to other users of LimeWire or FrostWire. The judgment is therefore vacated and the case remanded. At the resentencing hearing the prosecutor will have an opportunity to present evidence as to what the defendant knew or probably knew.

VACATED AND REMANDED.