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                               Appellate Court                         Date: 2016.08.29
                                                                       12:27:54 -05'00'




                  People v. Relerford, 2016 IL App (1st) 132531



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           WALTER RELERFORD, Defendant-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-13-2531



Filed             June 24, 2016



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-8636; the
Review            Hon. William G. Lacy, Judge, presiding.



Judgment          Vacated.



Counsel on        Michael J. Pelletier, Patricia Mysza, Kate Schwartz, and Jonathan
Appeal            Yeasting, all of State Appellate Defender’s Office, of Chicago, for
                  appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Annette Collins, Kathryn Schierl, and Veronica Calderon Malavia,
                  Assistant State’s Attorneys, of counsel), for the People.



Panel             JUSTICE DELORT delivered the judgment of the court, with opinion.
                  Presiding Justice Rochford and Justice Hoffman concurred in the
                  judgment and opinion.
                                              OPINION

¶1       After a bench trial, defendant Walter Relerford was convicted of stalking and
     cyberstalking. He was originally sentenced to six years’ imprisonment and one year of
     mandatory supervised release (MSR). Several months after the original sentencing hearing, the
     court reconvened and sentenced defendant to four years of MSR on the basis that it had
     imposed the MSR portion of the original sentence in error. On appeal, defendant contends that
     his convictions should be vacated because the statutes under which he was convicted (720
     ILCS 5/12-7.3(a)(1), (2), 12-7.5(a)(1), (2) (West 2012)) violate state and federal constitutional
     guarantees of free speech and due process. He also contends that he is entitled to a new trial
     because the trial court ignored his requests to proceed pro se. Finally, he asks that we vacate
     his term of four years of MSR and reinstate the original term of one year. For the reasons that
     follow, we find that the statutes are unconstitutional and therefore vacate defendant’s
     conviction and sentence on that basis alone. Accordingly, we need not reach the remaining
     issues.

¶2                                         BACKGROUND
¶3       Defendant was charged by indictment with two counts of stalking (720 ILCS
     5/12-7.3(a)(1), (2) (West 2012)) (the general stalking statute) and two counts of cyberstalking
     (720 ILCS 5/12-7.5(a)(1), (2) (West 2012)) (the cyberstalking statute). In particular, the
     indictments collectively alleged that defendant: (1) called Sonya Blakey on the telephone; (2)
     sent her e-mails; (3) stood outside of her place of business; (4) entered her place of business;
     and (5) made multiple posts on his Facebook page threatening Blakey’s coworkers and
     expressing his desire to engage in sexual acts with Blakey. The indictments further alleged that
     defendant “knew or should have known” that his conduct “would cause a reasonable person to
     suffer emotional distress” and “fear for her safety.”
¶4       At trial, Sonya Blakey testified that she worked for Clear Channel Media and
     Entertainment (CCME), where she managed and appeared on-air for a gospel radio station
     called Inspiration 1390. Beginning in May 2011, defendant began working as an intern at
     Inspiration 1390. His internship ended the following August. Around September or October
     2011, he applied for an open position as a board operator at the station. Blakey and Derrick
     Brown, one of her coworkers, interviewed defendant for the position. After the interview,
     defendant sent Blakey a follow-up e-mail asking if the position had been filled.
¶5       At some point, defendant was informed that he was not being offered the position. In
     response, defendant called and e-mailed Blakey, as well as several of her colleagues, asking
     whether he could intern at the station again. Blakey testified that she received five e-mails from
     defendant.
¶6       In January 2012, Blakey became aware that defendant was also contacting other CCME
     employees. At that point, Blakey’s manager told her to report any e-mails or phone calls that
     she received from defendant to human resources staff. According to Blakey, sometime
     between January and March 2012, CCME took the position that defendant was not welcome at
     the station and that his calls and e-mails should go unreturned. Jeffrey Garceau, an executive
     assistant to CCME’s president, testified that sometime around late March or early April 2011,
     he told defendant to stop contacting CCME employees.


                                                 -2-
¶7          In March 2012, while Blakey was leaving her downtown Chicago office, she looked
       through a glass window on the ground floor and saw defendant standing outside with some
       friends. Defendant saw Blakey and waved at her. Blakey did not wave back and continued on
       her way. She testified that this encounter made her “scared” and “nervous.”
¶8          Blakey next encountered defendant on April 4, 2012. That day, while Blakey was in the
       studio broadcasting live, defendant walked into the studio unannounced. Blakey explained that
       defendant’s act of entering the studio caused her to feel “startled,” “nervous,” and “violated.”
       According to Blakey, she had to switch her show to automated programming when defendant
       entered because she “was very nervous, very startled, shocked, scared, nervous, and *** didn’t
       know what to expect with him being there.” Ultimately, Blakey and one of her colleagues
       escorted defendant from the building.
¶9          On April 9, 2012, Blakey received an e-mail from defendant apologizing for the April 4
       incident. In the e-mail, defendant stated, “[m]y intentions were not to startle you or to catch
       you off guard.” Around the time that defendant sent that e-mail, one of Blakey’s colleagues
       who was a Facebook friend of defendant informed Blakey that defendant had made several
       postings on Facebook about Blakey. Blakey and defendant were not Facebook “friends,” so
       Blakey could not see defendant’s posts through her own Facebook account. However,
       Blakey’s colleague e-mailed the posts to Blakey.
¶ 10        In his first post, defendant demanded a job at CCME and, in a somewhat rambling manner,
       made a thinly veiled threat toward CCME’s employees if he was not given a job. In his second
       post, defendant wrote, “[t]he order: If Sonya’s vagina is not in my mouth by next Friday, bury
       the entire Michigan State football team from 1993. That’s the order. Send it through. One
       hundred.” Defendant’s third post described his affection for Blakey and long-held desire to
       obtain employment at CCME. Defendant’s fourth post stated “How am I gay? I want to fuck
       Sonya. There’s nothing gay about that.” Lastly, defendant’s fifth post contained a disjointed
       statement about Blakey, CCME, and an unidentified group of “Chinese people” whom
       defendant claimed were “talking about killing everyone” at CCME.
¶ 11        After CCME and Blakey became aware of the Facebook posts, CCME advised Blakey to
       stay home from work until the police located defendant. Blakey took some time off from work
       around April 11 or 12 because defendant’s actions made her feel “uncomfortable *** just a
       little bit uneasy, a little scared, a little fearful.” After defendant was apprehended on April 12,
       Blakey returned to work.
¶ 12        On cross-examination, Blakey testified that she did not recall defendant making any threats
       in any of the e-mails he sent to her and her colleagues regarding employment opportunities at
       CCME. With respect to the March 2012 incident, Blakey conceded that defendant did not
       verbally communicate with her. She testified that defendant did not enter the building during
       the incident but rather stayed outside on the sidewalk with a group of friends. Moreover, she
       acknowledged that the ground level of the building where CCME’s offices are located contains
       several businesses and restaurants.
¶ 13        Blakey admitted that defendant did not threaten her while he was at the studio on April 4
       and that he did not put up a struggle when Blakey and her colleague escorted him from the
       premises. As to defendant’s April 9 e-mail to Blakey, she conceded that the e-mail did not
       contain any statement threatening her safety or the safety of anyone at CCME. With respect to
       the Facebook postings, Blakey acknowledged that defendant did not send the posts directly to
       her and that she saw them only because a colleague showed them to her.

                                                    -3-
¶ 14       After the conclusion of testimony and closing arguments, the court found defendant “guilty
       as charged.” On July 23, 2013, the court sentenced defendant to six years’ imprisonment and
       one year of mandatory supervised release (MSR). The order of commitment entered by the
       court indicates that defendant was sentenced only on count I, which alleged a violation of
       section 7.3(a)(2), a provision of the general stalking statute. 720 ILCS 5/12-7.3(a)(2) (West
       2012). On January 7, 2014, the court held a supplemental hearing. The court noted that it had
       sentenced defendant to one year of MSR, but stated that the “sentence was in error” because
       due to a “change *** in the law, on a charge of stalking, mandatory supervised release term is
       four years.” The court accordingly issued a “[c]orrected” mittimus, nunc pro tunc to July 23,
       2013, reflecting a four-year MSR term. This appeal followed.

¶ 15                                            ANALYSIS
¶ 16       On appeal, defendant contends that subsections (a)(1) and (a)(2) of the general stalking and
       cyberstalking statutes are facially unconstitutional and unconstitutional as applied to him
       under the first and fourteenth amendments to the United States Constitution. Specifically,
       defendant argues that the stalking statutes violate the first amendment because they restrict a
       substantial amount of protected speech and that the statutes violate the due process clause
       because, inter alia, they do not contain a mens rea requirement. Defendant has raised similar
       challenges under the Illinois Constitution. See Ill. Const. 1970, art. I, §§ 2, 4. However,
       because the Illinois Supreme Court has interpreted the Illinois Constitution’s due process and
       free speech protections as generally coextensive with the federal constitution’s free speech and
       due process protections, we will first consider defendant’s federal claims. See Ann M. Lousin,
       The Illinois State Constitution: A Reference Guide 46 (Praeger 2010) (citing City of Chicago v.
       Pooh Bah Enterprises, LLC, 224 Ill. 2d 390 (2006)) (suggesting that the free speech clause of
       the Illinois Constitution may be narrower than the first amendment); Hope Clinic for Women,
       Ltd. v. Flores, 2013 IL 112673, ¶ 55 (due process clause of Illinois Constitution is coextensive
       with federal due process guarantees).
¶ 17       In People v. Bailey, 167 Ill. 2d 210 (1995), the supreme court rejected a first amendment
       and due process challenge to the version of the Illinois stalking statute that was in effect in
       1992. Id. at 225-27. The 1992 statute provided that a person committed the offense of stalking
       by “transmit[ting] to another person a threat with the intent to place that person in reasonable
       apprehension of death, bodily harm, sexual assault, confinement or restraint” and then in
       furtherance of the threat either follows or surveils the target on more than one occasion. 720
       ILCS 5/12-7.3(a) (West 1992). Between 1992 and 2010, the legislature revised the stalking
       statute seven times. The first six revisions retained the general requirement that an individual
       must “transmit to another person a threat with the intent to place that person in reasonable
       apprehension of death, bodily harm, sexual assault, confinement or restraint” to commit the
       offense of stalking. See, e.g., Pub. Act 88-402, § 5 (eff. Aug. 20, 1993) (requiring that
       defendant “transmit[ ] a threat *** of immediate or future bodily harm, sexual assault,
       confinement or restraint” or place a person “in reasonable apprehension of immediate or future
       bodily harm, sexual assault, confinement or restraint”); Pub. Act 88-677, § 20 (eff. Dec. 15
       1994) (same); Pub. Act 89-377, § 15 (eff. Aug. 18, 1995) (same); Pub. Act 91-640, § 5 (eff.
       Aug. 20, 1999) (same); Pub. Act 92-827, § 5 (eff. Aug. 22, 2002) (same); Pub. Act 95-33, § 5
       (eff. Jan. 1, 2008) (same).



                                                  -4-
¶ 18        In 2009, the legislature significantly amended the stalking statute. See Pub. Act 96-686, § 5
       (eff. Jan. 1, 2010). The 2009 amendments: (1) removed the threat requirement from the
       definition of the general stalking offense; (2) created subsection (a-3), which retained the
       threat-centric definition of stalking that was present in the statute since 1992; and (3) redefined
       the general offense of stalking in section (a). Accordingly, Bailey and similar cases relied on by
       the State do not control our analysis of defendant’s constitutional claims.
¶ 19        In its current form, section (a) of the general stalking statute provides:
                 “A person commits stalking when he or she knowingly engages in a course of conduct
                 directed at a specific person, and he or she knows or should know that this course of
                 conduct would cause a reasonable person to:
                         (1) fear for his or her safety or the safety of a third person; or
                         (2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a)(1), (2) (West 2012).
¶ 20        The general stalking statute defines “course of conduct” as:
                 “2 or more acts, including but not limited to acts in which a defendant directly,
                 indirectly, or through third parties, by any action, method, device, or means follows,
                 monitors, observes, surveils, threatens, or communicates to or about, a person, engages
                 in other non-consensual contact, or interferes with or damages a person’s property or
                 pet. A course of conduct may include contact via electronic communications.” 720
                 ILCS 5/12-7.3(c)(1) (West 2012).
       The statute further defines “emotional distress” as “significant mental suffering, anxiety or
       alarm” (720 ILCS 5/12-7.3(c)(3) (West 2012)) and “reasonable person” as “a person in the
       victim’s situation” (720 ILCS 5/12-7.3(c)(8) (West 2012)).
¶ 21        In People v. Douglas, 2014 IL App (5th) 120155, the Fifth District rejected a due process
       challenge to subsection (a) of the general stalking statute on the basis that it did not contain a
       mens rea requirement. Id. ¶ 39. However, after the court’s decision in Douglas, the United
       States Supreme Court handed down its decision in Elonis v. United States, 575 U.S. ___, 135
       S. Ct. 2001 (2015), which compels a result different from that in Douglas.
¶ 22        In Elonis, the Court held that due process precluded the government from convicting a
       defendant under a federal stalking statute because the defendant’s conviction “was premised
       solely on how his posts would be understood by a reasonable person.” Id. at ___, 135 S. Ct. at
       2011. The defendant was charged with violating a federal statute that made it a crime to
       “ ‘transmit[ ] in interstate or foreign commerce any communication containing any threat to
       kidnap any person or any threat to injure the person of another’ ” after he made several
       Facebook posts about his ex-wife containing violent imagery. Id. at ___, 135 S. Ct. at 2008
       (quoting 18 U.S.C. § 875(c) (2006)).
¶ 23        At trial, the defendant requested a jury instruction stating “ ‘the government must prove
       that he intended to communicate a true threat,’ ” but the district court refused to tender the
       instruction. Id. at ___, 135 S. Ct. at 2007. In its closing argument, the government explicitly
       claimed that it was not relevant whether the defendant intended his posts to be threats, stating
       “ ‘it doesn’t matter what he thinks.’ ” Id. at ___, 135 S. Ct. at 2007. A jury found the defendant
       guilty, and the court of appeals affirmed his conviction.
¶ 24        The Supreme Court reversed. The court noted that the defendant and the government both
       agreed that “a defendant under Section 875(c) must know that he is transmitting a
       communication.” Id. at ___, 135 S. Ct. at 2011. “But,” the Court explained, “communicating

                                                    -5-
       something is not what makes the conduct ‘wrongful.’ ” (Emphasis in original.) Id. at ___, 135
       S. Ct. at 2011. Instead, the Court noted, “ ‘the crucial element separating legal innocence from
       wrongful conduct’ is the threatening nature of the communication.” Id. at ___, 135 S. Ct. at
       2003 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994)). The problem,
       though, was that the defendant’s conviction “was premised solely on how his posts would be
       understood by a reasonable person.” Id. at ___, 135 S. Ct. at 2011.The Court explained that
       imposing criminal liability using a “reasonable person” standard was incompatible with due
       process requirements:
                “Such a ‘reasonable person’ standard is a familiar feature of civil liability in tort law,
                but is inconsistent with ‘the conventional requirement for criminal conduct–awareness
                of some wrongdoing.’ [Citation.] Having liability turn on whether a ‘reasonable
                person’ regards the communication as a threat–regardless of what the defendant
                thinks–‘reduces culpability on the all-important element of the crime to negligence,’
                [citation], and we ‘have long been reluctant to infer that a negligence standard was
                intended in criminal statutes,’ [citations]. Under these principles, ‘what [Elonis] thinks’
                does matter.” Id. at ___, 135 S. Ct. at 2011.
¶ 25       We note that Elonis was decided in 2015. Thus, neither the legislature, when it amended
       the stalking statute in 2009, nor the judge who presided over defendant’s trial in 2013, had the
       benefit of the Supreme Court’s guidance on this issue.
¶ 26       As noted above, defendant was sentenced for violating subsection (a)(2) of the general
       stalking statute. That section criminalizes a wide range of conduct, including communicating
       to or about a person. But, like the statute at issue in Elonis, “communicating something is not
       what makes *** conduct ‘wrongful’ ” under subsection (a)(2). (Emphasis in original.) Id. at
       ___, 135 S. Ct. at 2011. Instead, an individual’s conduct is criminal under section (a)(2) if, and
       only if, the defendant “knows or should know” that it would cause “reasonable person” to
       “suffer *** emotional distress.” 720 ILCS 5/12-7.3(a)(2) (West 2012). Subsection (a)(2)
       contains no requirement that the individual actually intend to inflict emotional suffering on a
       person. Thus, as currently drafted, subsection (a)(2) bypasses “ ‘the conventional requirement
       for criminal conduct–awareness of some wrongdoing’ ” in favor of a reasonable person
       standard of criminality. (Emphasis in original.) Elonis, 575 U.S. ___, 135 S. Ct. at 2011
       (quoting Staples v. United States, 511 U.S. 600, 606-07 (1994)). This is a standard which the
       due process clause does not permit. Id. at ___, 135 S. Ct. at 2011 (“defendant could face
       ‘liability in a civil action for negligence, but he could only be held criminally for an evil intent
       actually existing in his mind’ ” (quoting Cochran v. United States, 157 U.S. 286, 294 (1895))).
¶ 27       Accordingly, we hold that subsection (a)(2) of the general stalking statute, of which
       defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially
       unconstitutional under the due process clause of the fourteenth amendment.
¶ 28       We next address defendant’s claims concerning his convictions under subsection (a)(1) of
       the general stalking statute and subsections (a)(1) and (a)(2) of the cyberstalking statute. At the
       outset, we must address our jurisdiction to consider these claims. The State suggests that we
       lack jurisdiction over defendant’s convictions under subsection (a)(1) of the general stalking
       statute and subsections (a)(1) and (a)(2) of the cyberstalking statute because sentence was not
       entered on those convictions.
¶ 29       Our jurisdiction extends only to “final judgments.” Ill. Const. 1970, art. VI, § 6. And, as the
       supreme court has explained, “it is axiomatic that there is no final judgment in a criminal case

                                                    -6-
       until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be
       entertained.” People v. Flores, 128 Ill. 2d 66, 95 (1989). But, as the State concedes in its
       appellate brief, the supreme court has also explained that the appellate court should entertain
       jurisdiction where a defendant has sentenced and unsentenced convictions and the sentenced
       conviction has been vacated. See People v. Dixon, 91 Ill. 2d 346, 353-54 (1982). Furthermore,
       defendant has standing to raise this challenge because he was criminally prosecuted and
       convicted for violating these statutes. People v. Aguilar, 2013 IL 112116, ¶ 12 (finding that a
       criminal defendant had standing to make a facial challenge to a criminal statute under similar
       circumstances).
¶ 30       Since we have found that the statute pursuant to which defendant was convicted and
       sentenced is unconstitutional, his conviction thereunder must be vacated. And since
       defendant’s conviction under subsection (a)(2) is vacated, we have jurisdiction to consider his
       challenges to his remaining convictions.
¶ 31       Subsection (a)(1) of the general stalking statute violates due process for the same reason as
       subsection (a)(2), as it does not contain a mental state requirement. Under subsection (a)(1), a
       defendant can be convicted of stalking if he or she engages in course of conduct and “knows or
       should know” that the course of conduct would “cause a reasonable person to *** fear for his
       or her safety or the safety of a third person.” 720 ILCS 5/12-7.3(a)(1) (West 2012). Like
       subsection (a)(2), criminality under subsection (a)(1) turns entirely on whether the defendant
       “knows or should know” how a “reasonable person” would react to the defendant’s conduct,
       without regard to the defendant’s subjective intentions. The two sections differ only in that
       subsection (a)(2) requires the victim to suffer emotional distress, whereas subsection (a)(1)
       requires the victim to fear for his or her safety or the safety of a third person. Subsection (a)(1)
       of the general stalking statute is therefore facially unconstitutional under the due process
       clause of the fourteenth amendment.
¶ 32       We next consider defendant’s challenge to subsections (a)(1) and (a)(2) of the
       cyberstalking statute. Subsection (a) of the cyberstalking statute provides:
                   “(a) A person commits cyberstalking when he or she engages in a course of conduct
               using electronic communication directed at a specific person, and he or she knows or
               should know that would cause a reasonable person to:
                       (1) fear for his or her safety or the safety of a third person; or
                       (2) suffer other emotional distress.” 720 ILCS 5/12-7.5(a)(1), (2) (West 2012).
¶ 33       Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to
       subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the
       cyberstalking statute specifies that the defendant’s course of conduct involved electronic
       communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the
       cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional
       under the due process clause of the fourteenth amendment for the same reason that subsections
       (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

¶ 34                                       CONCLUSION
¶ 35      Accordingly, we vacate defendant’s convictions for violating the statutes in question.
       Based on this disposition, we need not consider defendant’s other contentions.



                                                    -7-
¶ 36   Vacated.




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