Schlosser v. State

ILLINOIS OFFICIAL REPORTS

Appellate Court

Schlosser v. State, 2012 IL App (3d) 110115

Appellate Court KIRK W. SCHLOSSER, Plaintiff-Appellant, v. THE STATE OF

Caption ILLINOIS, Defendant-Appellee.

District & No. Third District

Docket No. 3-11-0115

Filed January 18, 2012

Held Plaintiff’s application for a firearm owner’s identification card was

(Note: This syllabus properly denied due to his prior conviction for indecent solicitation of a

constitutes no part of child, notwithstanding plaintiff’s contention that the offense was not a

the opinion of the court forcible felony, since the conduct giving rise to defendant’s conviction

but has been prepared involved conversing about sexual matters in an Internet chat room with

by the Reporter of a person he thought was a 14-year-old girl, arranging to meet her at a bus

Decisions for the stop, going to the bus stop but not stopping, then being stopped by the

convenience of the police who informed him that the girl claimed he was her uncle and then

reader.)

indicating that he was her uncle, and that conduct exhibited the

“contemplation” and “implied willingness” to commit an act of violence

against a child and forcible felonies encompass any “felony which

involves the use of threat of physical force or violence.”

Decision Under Appeal from the Circuit Court of Will County, No. 10-MR-279; the Hon.

Review Bobbi N. Petrungaro, Judge, presiding.

Judgment Affirmed.

Counsel on Robert J. Welz, of Rouskey & Baldacci, of Joliet, for appellant.

Appeal

James Glasgow, State’s Attorney, of Joliet (Philip A. Mock, Assistant

State’s Attorney, of counsel), for appellee.

Panel PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,

with opinion.

Justice O’Brien concurred in the judgment and opinion.

Justice Wright concurred in part and dissented in part, with opinion.

OPINION

¶1 On September 19, 2007, the Illinois State Police denied plaintiff’s application for a

firearm owner’s identification (FOID) card due to plaintiff’s prior conviction for the offense

of indecent solicitation of a child. Plaintiff filed a petition for hearing in the circuit court of

Will County following the denial of his application. The trial court denied plaintiff’s request

for relief based upon the court’s finding that plaintiff’s prior conviction constituted a forcible

felony. Plaintiff appeals, claiming the trial court erred in finding indecent solicitation of a

child is a forcible felony. We affirm.

¶2 FACTS

¶3 On March 17, 2010, plaintiff filed a petition for hearing following the denial of his

application for a FOID card. In the petition, plaintiff claimed that on September 19, 2007,

the Illinois State Police denied his application for a FOID card due to his prior conviction for

the Class 2 felony offense of indecent solicitation of a child (720 ILCS 5/11-6 (West 2002))

on December 30, 2002.

¶4 The petition alleges that plaintiff owns a farm, is a productive member of society, and

wishes to resume hunting with a firearm. Plaintiff further alleged that the 2002 solicitation

case is his only criminal conviction, that he previously held a valid FOID card for many

years, and that his history and reputation established he would not be likely to act in a

dangerous manner if he received a FOID card. He argued that granting his petition would not

be contrary to public interest.

¶5 At a hearing on November 17, 2010, the trial court asked if there was a record of “what

was done at the ISP level.” The prosecutor advised the court that there was no record

“because this isn’t, I don’t think, an administrative review.”

¶6 Plaintiff testified that on December 30, 2002, he pled guilty to the Class 2 felony offense

of solicitation of a child in Cook County, Illinois. Plaintiff explained the circumstances that

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resulted in this conviction. He testified that he was on the Internet in a chat room, conversing

with a person that he thought was a 14-year-old girl from Hillside, Illinois. Communications

involved talk of a sexual nature. Plaintiff stated, “oral sex was discussed, doggy style sex,

people on top; that type of stuff was discussed.” During this conversation, he made

arrangements to meet with the teenage girl at a bus stop. Plaintiff drove to the bus stop, saw

a girl but never stopped. He was then pulled over by the police, who informed him that a girl

who stole a soda claimed he was her uncle. Plaintiff indicated to the police that he was the

girl’s uncle and offered to pay for the soda that the girl stole.

¶7 After his arrest, he learned that he was communicating with a police officer online, rather

than a teenage girl. He admitted that portions of the online conversation involved a

discussion of various sexual positions, and because of that conversation, he pled guilty. He

denied threatening the person online or forcing the person to meet him. He admitted having

ammunition in his vehicle at the bus stop, but denied possessing a weapon in his vehicle.

Plaintiff testified he had no other convictions for felony or misdemeanor offenses. Plaintiff

stated that his sentence included two years’ probation, “sexual rehabilitation, and 10 years

registry.” He told the court that he was at the end of his eighth year of registration and was

in compliance with the registration requirements.

¶8 Scott Siebert testified that he had known plaintiff since 1974 and frequently hunted with

plaintiff. Siebert said that he was aware of plaintiff’s conviction and the circumstances

surrounding the conviction. Siebert advised the court that plaintiff would not be a danger to

the public if he was granted a FOID card because Siebert did not believe that plaintiff would

commit a similar criminal offense.

¶9 Wyatt Haws testified that he had known plaintiff all of his life. Haws stated that he was

an ordained minister and worked with Light of Fire Ministries. Haws said that since

plaintiff’s conviction, they spoke at least twice a week. He did not believe that plaintiff

would commit another criminal offense, and he did not believe that plaintiff would be a

danger to the public if granted a FOID card.

¶ 10 Gary Twardowski testified that he was a retired Illinois State Police trooper and

detective. He stated that he became the “overall sex offender registration coordinator for

La Salle, Bureau and Putnam Counties.” In his opinion, there were “a lot of different types

of crimes that would fall under the Sex Offender Registration Act.” He said that “[n]ot all

people convicted should be denied” a weapon. Twardowski said that he knew plaintiff’s

parents and had known plaintiff since 1996. He learned of plaintiff’s conviction and spoke

to plaintiff about the incident. He did not believe that plaintiff would be a danger to the

public if granted a FOID card.

¶ 11 Following Twardowski’s testimony, plaintiff rested. The State did not offer any evidence.

¶ 12 Plaintiff’s attorney argued to the court that plaintiff was improperly denied a FOID card

by the Illinois State Police due to a previous felony conviction, which should not be

considered a forcible felony. Plaintiff’s attorney also argued that plaintiff did not pose a

danger to public safety and that granting the relief would not be contrary to public interest.

¶ 13 The prosecutor argued that plaintiff’s conviction constituted a forcible felony, as “[w]ith

a victim 14 and him [plaintiff] in his 40’s, aggravated criminal sexual assault would have

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occurred, even if it was consensual activity, because of the age difference.” He further argued

that plaintiff pled guilty to a specific intent crime, “which shows a specific intent to commit

a forcible felony.” The prosecutor stated that the term “threat” should be interpreted in this

case to mean any type of communication that could cause or ultimately result in force or

violence against an individual.

¶ 14 In addition, the prosecutor argued that plaintiff had not established the other factors set

forth in the statute, specifically that plaintiff would not be a danger to the public and that

granting plaintiff relief was not against public interest. After hearing arguments from

counsel, the trial court took the matter under advisement.

¶ 15 On January 18, 2011, the trial court issued a written order finding that the offense of

indecent solicitation of a child fell within the definition of “ ‘any other felony which involves

the use or threat of physical force or violence against any individual’ as the threat of such

physical force involving the child.” The court denied plaintiff’s petition. This timely appeal

followed.

¶ 16 ANALYSIS

¶ 17 On appeal, plaintiff argues that indecent solicitation of a child does not constitute a

forcible felony. The State argues, in response, that if indecent solicitation of a child is not a

forcible felony, plaintiff could not appeal the denial of his FOID card directly to the circuit

court. Instead, the State claims plaintiff should have appealed to the Director of the Illinois

State Police. Alternatively, assuming we find indecent solicitation of a child is a forcible

felony, the State argues the trial court properly denied plaintiff’s petition as he is a registered

sex offender and felon convicted of a forcible felony.

¶ 18 We begin by addressing the State’s argument that the trial court lacked subject matter

jurisdiction to hear plaintiff’s petition because plaintiff should have appealed the denial of

his FOID card to the Director of the Illinois State Police rather than directly to the circuit

court. Plaintiff responds that the State waived any objection to the trial court’s subject matter

jurisdiction in this case by arguing the merits in the circuit court. We review de novo whether

the circuit court properly exercised jurisdiction. In re John C.M., 382 Ill. App. 3d 553, 558

(2008); In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004).

¶ 19 The parties agree that the relevant statutory provision is set forth at section 10 of the

Firearm Owners Identification Card Act (430 ILCS 65/0.01 et seq. (West 2010)). The statute

provides:

“(a) Whenever an application for a Firearm Owner’s Identification Card is denied,

*** the aggrieved party may appeal to the Director of the Department of State Police for

a hearing upon such denial, revocation or seizure, unless the denial, revocation, or seizure

was based upon a forcible felony, stalking, aggravated stalking, domestic battery, any

violation of the Illinois Controlled Substances Act, the Methamphetamine Control and

Community Protection Act, or the Cannabis Control Act that is classified as a Class 2 or

greater felony, any felony violation of Article 24 of the Criminal Code of 1961, or any

adjudication as a delinquent minor for the commission of an offense that if committed

by an adult would be a felony, in which case the aggrieved party may petition the circuit

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court in writing in the county of his or her residence for a hearing upon such denial,

revocation, or seizure.” (Emphasis added.) 430 ILCS 65/10(a) (West 2010).

¶ 20 Contrary to the State’s position, the plain language of the statute states that an applicant

“may appeal to the Director of the Department of State Police for a hearing upon such denial,

revocation or seizure, unless the denial, revocation, or seizure was based upon a forcible

felony.” When the denial by the State Police is based on a determination that the applicant

has a conviction for a forcible felony, then the applicant must seek relief in the trial court.

¶ 21 Based upon the facts presented in this record, we conclude that the denial of the FOID

card application in this case was based on a determination that plaintiff had a prior forcible

felony conviction. Therefore, the trial court had jurisdiction to hear plaintiff’s application,

and plaintiff’s appeal is properly before this court.

¶ 22 We turn now to the issue of whether the trial court properly found that plaintiff’s

conviction for indecent solicitation of a child constituted a forcible felony. We review this

question of law de novo. People v. Belk, 203 Ill. 2d 187, 192 (2003) (citing People v.

Richardson, 196 Ill. 2d 225, 228 (2001)).

¶ 23 Section 2-8 of the Criminal Code of 1961 defines “forcible felony” as follows:

“[T]reason, first degree murder, second degree murder, predatory criminal sexual assault

of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary,

residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping,

aggravated battery resulting in great bodily harm or permanent disability or disfigurement

and any other felony which involves the use or threat of physical force or violence

against any individual.” 720 ILCS 5/2-8 (West 2010).

¶ 24 Indecent solicitation of a child is not one of the enumerated offenses. As such, we must

determine whether this offense involves the use or threat of physical force or violence against

any individual in order to qualify as a forcible felony. 720 ILCS 5/2-8 (West 2010). “It is the

contemplation that force or violence against an individual might be involved combined with

the implied willingness to use force or violence against an individual that makes a felony a

forcible felony under the residual category of section 2-8.” People v. Belk, 203 Ill. 2d at 196.

¶ 25 Here, the charged offense was indecent solicitation of a child which occurs when

“[T]he person, with the intent that the offense of aggravated criminal sexual assault,

criminal sexual assault, predatory criminal sexual assault of a child, or aggravated

criminal sexual abuse be committed, knowingly solicits a child or one whom he or she

believes to be a child to perform an act of sexual penetration or sexual conduct as defined

in Section 12-12 of this Code.” 720 ILCS 5/11-6(a) (West 2002).

¶ 26 The record reveals that plaintiff pled guilty to soliciting sex from someone he believed

to be a 14-year-old. He drove to a bus station to meet her, claimed to be her uncle, and paid

for property she allegedly stole to secure her release from custody. Plaintiff was

approximately 40 years of age at the time.

¶ 27 Our system of jurisprudence adopted the concept that a person must attain a certain age

to be able to give consent to sexual activities from the English common law, which codified

the principle in 1275. People v. Lloyd, 2011 IL App (4th) 100094, ¶ 31. The reasoning

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behind the age of consent is that young people lack maturity in judgment and the ability to

comprehend the consequences of such activity. Id. The age of consent fixed by a state

represents a legislative judgment about the maturity of minors in matters of sexual activity.

Id.; see also Beul v. ASSE International, Inc., 233 F.3d 441, 450 (7th Cir. 2000). Our

legislature has enacted several age-based criminal statutes addressing an offender’s age, the

victim’s age, and types of conduct which show the age of consent in Illinois is generally 17

(720 ILCS 5/12-15(c) (West 2010)) but, in a few instances, it is 18. 720 ILCS 5/12-13(a)(3)

(West 2010).

¶ 28 In Clay v. Kuhl, 189 Ill. 2d 603 (2000), our supreme court made it clear that “Illinois law

presumes an intent to harm and resulting injury” from sexual abuse of a minor. Id. at 611;

see also Softcheck v. Imesch, 367 Ill. App. 3d 148, 156 (2006). We find that since sexual

abuse of a minor involves an act of violence against a child, that inherent in the act of

soliciting a child for sex is the threat of violence against that child. We submit that the

dissent ignores the fact that physical force or violence against the child was not necessary;

forcible felonies encompass any “felony which involves the use of threat of physical force

or violence.” (Emphasis added.) 720 ILCS 5/2-8 (West 2010). Defendant, through his actions

both on the computer and in driving to meet someone he thought was a 14-year-old girl, and

then telling police he was the girl’s uncle, clearly exhibited the “contemplation” and “implied

willingness” to commit an act of violence against a child. See Belk, 203 Ill. 2d at 196. We

hold the trial court did not err in denying plaintiff’s petition based on a finding that

solicitation of a child for a sex act is a forcible felony.

¶ 29 CONCLUSION

¶ 30 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

¶ 31 Affirmed.

¶ 32 JUSTICE WRIGHT, concurring in part and dissenting in part:

¶ 33 I agree with the majority’s conclusion that the plain language of the Firearm Owners

Identification Card Act required Schlosser to seek relief in the trial court from the Illinois

State Police’s denial of his FOID application. I further agree with the majority’s conclusion

that the trial court had jurisdiction to hear Schlosser’s application. Therefore, I agree that

Schlosser’s appeal is properly before this court. However, I do not agree with the majority’s

conclusion that Schlosser’s conviction for indecent solicitation of a child constituted a

forcible felony for the reasons discussed below.

¶ 34 First, a felony offense, not specifically enumerated by statute, is determined to be a

forcible felony by examining whether the felony involved the use or threat of physical force

or violence against an individual. 720 ILCS 5/2-8 (West 2010). This determination is entirely

dependent on the facts of each particular case and the nature of the impermissible interaction

initiated by the offender. See People v. Belk, 203 Ill. 2d 187 (2003); People v. Golson, 32 Ill.

2d 398 (1965).

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¶ 35 Here, the specific facts surrounding Schlosser’s prior felony conviction for indecent

solicitation of a child will determine whether Schlosser contemplated the use of force or

violence against another when committing the prior criminal act. People v. Belk, 203 Ill. 2d

at 195. The criminal statute defines “solicit” as “to command, authorize, urge, incite, request,

or advise another to perform an act by any means including, but not limited to, in person,

over the phone, in writing, by computer, or by advertisement of any kind.” 720 ILCS 5/11-

6(b) (West 2002). Thus, the act of solicitation can be based on a polite request and does not

necessarily require a threatening directive toward another person.

¶ 36 Based upon the undisputed facts resulting in his prior conviction, Schlosser’s actions

included undeniably salacious, but, nonetheless, long-distance, Internet conversations with

another person. These Internet conversations did not incorporate or involve either an implicit

or an explicit threat of force or violence toward that person. In addition, Schlosser’s

expressed desires to have physical contact with another person were abandoned by Schlosser

before he could meet with the intended victim and inflict any physical act of force or

violence upon her.

¶ 37 In this case, Schlosser did not actually use threats, force, or violence when committing

the specific crime of indecent solicitation of a child as charged. Due to these circumstances,

I respectfully submit that Schlosser’s prior conviction for indecent solicitation of a child does

not fit the statutory definition of a forcible felony.

¶ 38 The majority notes that Illinois law presumes an intent to harm resulting from an act of

sexual abuse against a minor. However, this presumption applies to actual physical and

sexual contact between an adult and a child. See Softcheck v. Imesch, 367 Ill. App. 3d at 156

(citing Clay v. Kuhl, 189 Ill. 2d at 611). In this case, Schlossler’s criminal act was completed

once he communicated, by computer, his desire to have an inappropriate rendevous with the

purported 14-year-old girl. See 720 ILCS 5/11-6(a) (West 2002). Therefore, I conclude that

presumed harm or violence did not attach to Schlosser’s inappropriate act of communication

alone.

¶ 39 Even though I do not believe that Schlosser’s prior felony conviction qualifies as a

forcible felony, this conclusion does not automatically entitle Schlosser to the requested

relief. I would remand the matter for the trial court to make a factual determination whether

(1) it is likely that Schlosser would act in a manner dangerous to the public; and (2) whether

the requested relief is contrary to the public interest as required by the statute. See 430 ILCS

65/10(c) (West 2010). Either one of these determinations would support the trial court’s

conclusion.

¶ 40 For these reasons, I concur in part and dissent in part.

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