## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Schlosser v. Stat

e , 2012 IL App (3d) 110115

Appellate Court Caption KI RK W. SCHL OSSER, Plai n t i ff- Appellant, v. THE STATE OF I L L I NOI S, Defe ndant-Appe llee.

District & N o. Third District Docke t No. 3-11-0115

Filed J anuar y 18, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Pla i n t i ff’ s application for a firea rm owner ’s identification car d was proper ly denied due to his prior conviction for indece nt solicitation of a child, notwithsta n d ing plaintiff’s contention that the offe nse was not a forc ible felony
, since the conduct g iving rise to defe ndant’s co n v i ction involved conver sing about sexual matters in an Interne t chat room with

a person he thought was a 14-year -old g irl, arr ang ing to meet her at a bus stop, g oing to the bus stop but not stopping, then being stopped b y the police who informed him that the g irl claimed he was her uncle and then indicating that he was her uncle, and t h at co nduct exhibi ted the “conte mplation” and “implied willingness” to commit an act of violence
ag ainst a child and forc ible felonies encompa ss an y “fe lony which involves the use of thre at of phy sical for ce or violence.”

Dec ision Under Review Appea l from the Circuit Court of Wil l County
, No. 10-MR-279; the Hon. Bobbi N. Petrung aro, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Robert J . Welz , of Rouskey & B aldac ci, of Joli et, for a ppellant.

J ames Glasg ow, State’s Attorney
, of J oliet (Philip A. Mo ck, Assistant State’s Attorney , of counse l), for a ppellee.

Panel PRES I DI NG J USTI CE SCHMI DT delivere d the judgme nt of the court, with opinion.
J ustice O’B rien c oncurr ed in the judgment and opinion.
J ustice Wright c oncurr ed in par t and dissented in par

t, with opinion.

OP INION

¶ 1 On S ep t em b er 19, 2007, the I llinois State Police denied plaintiff’s application for a firea rm owner ’s identification (F OI D) car d due to plaintiff’s prior conviction for the offe nse of indece nt solicitation of a child. Plaintiff filed a petition for hear ing in the circ uit court of Wil l County following the denial of his application. The trial court denied plaintiff’s reque st for relief based upon the court’s finding that plaintiff’s prior conviction constituted a forc ible felony

. Plaintiff appea ls, claiming the trial court err ed in fi n d ing indece nt solicitation of a child is a forc ible felony . We affir m.

¶ 2 FACTS ¶ 3 On Marc h 17, 2 0 1 0
, p l ai n t i ff filed a petition for hear ing following the denial of his application for a FOI D card. In the petit ion, plaintiff claimed that on September 1 9
, 2 007, the I llinois State Police denied his application for a FOID car d due to his prior conviction for the Class 2 felony offe nse of indece nt solicitation of a child (720 I L CS 5/11-6 (West 2002)) on Dec ember

30, 2002. ¶ 4 T h e p et ition alleg es t hat pl aintiff owns a farm, i s a productive member of society
, an d wishes to r esume huntingwith a firea rm. Plaintiff f

urther alleg ed that the 2002 solicitation

case i s h i s only criminal conviction, that he previously held a valid FOID car d for many y ear s, and that his history and reputation established he wo u l d not be likely to act in a dang erous manner if he rec eived a FOID car d. He argued that g ranting his petition would not be contr ary

to public interest. ¶ 5 At a hear ing on November 17, 2010, the trial court asked if there was a rec ord of “what

was done at the I SP level.” The prosec utor advised the court that there was no rec ord “bec ause this isn’t, Idon’t think, an administrative re view.” ¶ 6 Plaintiff testified that on Dec ember 30, 2002, he pled guilty to the Class 2 felony offe nse of solicitation of a child in Cook County
, I llinois

. Plaintiff explained the circ umstances that

-2-resulted in this conviction. He testified that he was on the Interne t in a chat room, conver sing

with a person that he thought was a 14-year -old g irl from Hillside, I llinois

. Communi cations involved talk of a sexual nature

. Plaintiff stated, “oral s ex was d i s cussed, dog g y style s ex, people on top; that ty

pe of stuff was di s cussed.” During this conver sation, he made

arr ang ements to meet with the teena g e g irl at a bus stop. Plaintiff drove to the bus stop, saw

a g irl but never stopped. He was then pulled over by the police, who informed him that a g irl who stole a soda c laimed he wa s her uncle. Plaintiff indica ted to the police that he w as the
g irl’s uncle a

nd offe red to pa

y for the soda

that the g irl stole. ¶ 7 After his arr est, he lear ned that he was communicating with a police office r online, rathe r than a teena g e g irl. He admitted that portions of the online conver sation in v o l ved a discussion of various sexual positions, and beca use of that conver sation, he pled guilty

. He denied threatening the person online or forc ing the person to meet him. He admitted having ammuniti o n i n his vehicle at the bus stop, but denied possessing a wea pon in his vehicle. Plaintiff testified he had no other convictions for felony or misdemeanor offe nses. Plaintiff stated that his sentenc e included two y ear s’ probation, “sexual reha bilitation, and 10 y ear s reg istry .” He told the c ourt that he was at the end of his eig hth y ear of re g istration and was in compliance w ith the reg istration require ments. ¶ 8 Scott Siebert testified that he had known plaintiff since 1974 and fre quently hunted with plaintiff. Siebert said that h e wa s aw are of plaintiff’s conviction and the circ umstances surrounding the conviction. Siebert advised the court that plaintiff would not be a dang er to the public if he was g rante d a FOID car d beca use Siebert did not believe that plaintiff would commit a simil ar c riminal offe nse. ¶ 9 Wy att Haws testified that he had known plaintiff all of his life. Haws stated that he was

an ordaine d minist er and worke d with L ight of Fire Ministries. Ha ws said that since plaintiff’s conviction, they spoke at l ea s t t wi ce a wee k. He did not believe that plaintiff woul d comm it another criminal offe nse, and he did not believe that plaintiff would be a dang er to the public if grante d a F OI D ca rd. ¶ 10 Ga ry T war dowski testified that he was a retire d I llinois State P o l i ce t ro o p er an d detec tive. He stated that he beca me the “ove rall sex offe nder reg istration coordinator for L a Salle, Bur eau and Putnam Counties.” In his opinion, there wer e “a lot of differ ent ty pes of crimes that would fall under the S ex Offender Reg istration Act.” He said that “[n] ot all
p eople convicted should be denied” a wea pon. Twar dowski said that he knew plai n t i ff’s
pare nts a nd had known plaintiff since 1996. He lear ned of plaintiff’s conviction and spoke
to plaintiff about the incident. He d i d not believe that plaintiff would be a dang er to the public if g rante d a F OI D ca rd. ¶ 11 Following Twar dowski’s testimony
, plaintiff rested. T h e St a te d id n o t o f

f e r a ny evidenc e. ¶ 12 Plaintiff’s attorney argued to the court that plaintiff was improperly denied a FOID ca rd by the I llinois State Police due to a previous felony conviction, wh i ch should not be considere d a forc ible felony

. Plaintiff’s attorney also ar gu ed t h at plaintiff did not pose a dang er to public safe ty and that g rantingthe relief would not be contra ry to public interest. ¶ 13 The prosec utor argued that plaintiff’s conviction constituted a forc ible felony
, as “[w]it h

a victim 14 and him [pl aint i ff ] in his 40’s, ag g ravated criminal sexual assault would have

-3-occur red, even if it was consensua l activity
, beca use of the ag e differ ence .” He further argued that plaintiff pled guilty to a specific intent crime, “which shows a specific intent to commit

a forc ible felony .” The prosec utor stated that the term “thre at” should be interpre ted in this

case to mean an y ty

pe of communication that could cause or ultimately result in forc e or violence a g ainst an individual. ¶ 14 In addition, the prosec utor argued that plaintiff had not e stablished the other fac tors set forth in the statute, specific ally that plaintiff would not be a dang er t o t h e p ub lic and that
g ranting plaintiff relief was not ag ainst public interest. After hear ing arguments from counsel, the tria l court took the matter unde r adviseme nt. ¶ 15 On J anuar

y 18, 2011, the tr i al co u rt i s s ued a written order finding that the offe nse of indece nt solicitation of a child fell within the definition of “ ‘any other felony which involves the use or threat of phy sical forc e or violence ag ainst an y i ndividual’ as the threa t of such phy sical forc e involving the child.” The court denied plaintiff’s petition. This timely appea l followed.

¶ 16 ANALYSI S ¶ 17 On appea l, plaintiff argues that indece nt s o l i ci t at i o n of a child does not constitute a forc ible felony

. The State arg ues, in response , that if indece nt solicitation of a child is not a forc ible felony
, plaintiff could not a ppeal the denial of his F OI D car d direc tly to the circ uit
court. Instead, the State claims plaintiff should have appea led to the Direc tor of the I llinois State Police. Alternativ ely
, assuming we find indece nt solicitation of a child is a forc ible felony
, the State argues the trial court proper ly denied plaintiff’s petition as he is a reg istered sex offender

and fe lon convicted of

a for cible fe lony

. ¶ 18 We beg in by addre ssing the State’s argument that the trial co u rt l ac k ed subject matter jurisdiction to hear plaintiff’ s petition because plaintiff should have a ppeale d the denial of his FOID car d to the Direc tor of the I llinois State Police rathe r than direc tly t o the circ uit
court. Plaintiff responds that the State waived any objection to the trial court’s subject matter jurisdiction in this case by arg uing the merits in the circ uit court. We revie w de novo whether the circ uit court proper ly exercised jurisdiction. In re John C.M.
, 382 I ll. App. 3d 553, 558 (2008); In re Marriage of Chrobak, 349 I ll. App. 3d 894, 897 (2004). ¶ 19 The parties agree that the rele vant statutory pro v i s i on is set forth at section 10 of the Fire arm Owner s I dentifica tion Card Act (430 I L CS 65/0.01 et seq. (West 2010)). The statute provides: “( a) Whenever an application for a Fire arm Owner’ s I dentification Card is denied, *** the ag g rieve d party may appea l to the Direc tor of the Depa rtment of State Police for

a hearing upon such denial, revoc ation or seizure, unless the denial, revoc ation, o r s e izure

was based upon a forc ible felony
, stalking, ag g ravated stalking, domestic battery
, any violation of the I llinois Controlled Subst ance s Act, the Methamphetamine Control a nd Communi ty Protection Act, or the Cannabis Control Act that is classified as a Class 2 or g reater felony
, any felony violation of Article 24 of the C riminal 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 ag grieve d party may petition the circ uit

-4-court in writing in the co unty of his or her residenc e for a hear ing upon such denial,

revoc ation, or seizure.” (Emphasis adde d.) 430 I L CS 65/ 10(a) (West 2010). ¶ 20 Contrary to the State’s position, the plain languag e of the statute states that an applicant “may appea l to the Direc tor of the Depa rtment of State Police for a hear ing upon such denial,

revoc ation or seizur e, u n l es s the denial, revoc ation, or seizure was based upon a forc ible felony .” When the denial by the State Police is based on a deter mination that the applicant has a c onviction for a f

orcible f elony , then the applica

nt must seek relief

in the trial court. ¶ 21 Ba sed upon the facts prese nted in this recor d, we conclude that the denial of t he FOI D

car d application in this case was based on a deter mination that plaintiff had a prior forc ible felony conviction. Therefor e, the trial court had jurisdiction to hear plaintiff’s application, and plaintiff’ s appea l is properly befor e this court. ¶ 22 We turn now to the issue of whether the trial court properl y fo u n d t h at p laintiff’s conviction for indecent solicitation of a c hild constitut ed a f orcible f elony . We review this question of law d

e n o vo

. People v. Belk
, 203 I ll. 2d 187, 192 (2003) (citing People v. Richardson , 196 I ll. 2d 225, 228 (2001)). ¶ 23 Section 2-8 of the Criminal Code of 1961 de fines “f orcible f elony” as f

ollows: “[T] rea son, first degree murder, second degree murder, predatory criminal sexual assault of a child, ag g ravated criminal sexual assault, criminal sexual assault, robber y , burg lary
, residential burg lary
, ag g ravated arso n , arson, ag g ravated kidnaping
, kidnaping
, ag g ravated battery resulting in g reat bodily harm or p e r ma n e n t d is a b il it y or disfigur ement and any other felony which involves the use or threat of phy sical forc e o r violence
ag ainst any

individual.” 720 I L CS 5/ 2-8 (West 2010). ¶ 24 Indece nt solicitation of a child is not one of the enumer ated offe nses. As such, we must deter mine whether this offe nse involves the use or threat of phy sical forc e or violence ag ainst
any individual in order to qualify as a forc ible felony

. 720 I L CS 5/2-8 (West 2010). “It is the contemplation that forc e or violence ag ainst an individual might be involved combined with the implied willing ness to use forc e or violence ag ainst an individual that makes a felony a forc ible felony under the residual cate g ory of section 2-8.” People v. Belk
, 203 I ll. 2d at 196. ¶ 25 Her e, the c harg ed off ense w as indec ent solicitation of a child which oc curs whe n “[T] he p er s o n , wi th the intent that the offe nse of ag g ravated criminal sexual assault, criminal sexu al assault, predatory criminal sexual assault of a child, or ag g ravated criminal sexual abuse be committed, know ingly solicits a child or one whom he or she believes to be a child to perf orm an act of sexual penetr ation or sexual conduct as define d in Section 12-12 of this Code.” 720 I L CS 5/ 11-6(a ) (West 2002). ¶ 26 The re cord r evea ls that plaintiff pled guilty to soliciting sex fr om someone he be lieved
to be a 14-year -old. He drove to a bus station to meet her, claimed to be her uncle, and paid for proper

ty she alleg edly stole to secur e her rele ase from custody

. Plaintiff was approximately

40 y ear s of ag e at the time. ¶ 27 Our sy stem of jurisprudenc e adopted the conce pt that a person must attain a cer tain ag e to be able to g ive consent to sexual activities from the Eng lish common law, which codified the p ri nciple in 1275. People v. Lloyd
, 2011 I L App (4th) 100094, ¶ 31. The rea soning

-5-behind the ag e of c onsent is that youngpeople lac k maturity in judg ment and the a bility to compre hend th e co n s eq u en ces of such activity

. Id. The ag e of consent fix ed by a state repr esents a leg islative judgme nt about the maturity of minors in matters of sexual activity

. Id. ; see also Beul v. ASSE International, Inc.
, 233 F.3d 4 4 1
, 450 (7th Cir. 2000). Our leg islature has enac ted sever al ag e-ba sed criminal statutes addre ssing an offe nder’ s ag e, the victim’s ag e, and ty

pes of conduct which show the ag e of consent in I llinois is g ener ally 17 (720 I L CS 5/12-15(c) (West 2010)) but, in a few instances, it is 18. 720 I L CS 5/12-13(a) (3) (West 2010). ¶ 28 In Clay v. Kuhl
, 189 I ll. 2d 603 (2000), our supreme court made it clea r that “I llinois law
presumes an intent to harm and resulting injury” from sexual abuse of a minor. Id. at 611;

see also Softcheck v. Ime

sch
, 367 I ll. Ap p

. 3d 148, 156 (2006). We find that since sexual abuse of a minor involves an act of violence ag ainst a child, that i n h er en t i n t h e act of soliciting a child for sex is t h e t h re at o f violence ag ainst that child. We submit that the dissent ignor es t he fact t hat phy sical for ce or violence a g ainst the child was not nec essar y ; forc ible felonies e ncompass any “fe lony which involves the use of threat of physical force

or violence .” (Emphasis added.) 720 I L CS 5/2-8 (West 2010)

. D e f e n d a nt, throug h his actions both on the computer and in driving to meet someone he thought was a 14-year -old g irl, and then telling p o li c e he was the g irl’s uncle, clea rly exhibi ted the “conte mplation” and “implied willingness” to commit an act of vi olence ag ainst a child. See Belk
, 203 I ll. 2d at 196. We hold the trial court did not err in denying plaintiff’s petition based on a fi nding that solicitation of a child for a sex act is a forc ible felony

.

¶ 29 CONCLUSI ON ¶ 30 For the fore g oing rea sons, the judgme nt of the circ uit court of Wil l County is affirme d.

¶ 31 Affir

med.

¶ 32 J USTI CE WR I GHT, c oncurr ing in pa rt and dissentingin part: ¶ 33 I agree with the majority ’s conclusion that the p l ai n l anguag e of the Fire arm Owners I dentification Card Act require d Schlosser to seek relief i n the trial court from the I llinois 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. There fore
, I agree that Schlosser’s appea l is proper ly befor e this court. Howeve r, I do not agree with the majority ’s concl usion that Schlosser’s conviction for indece nt solicitation of a child constituted a forc ible felony

for the r easons discusse d below. ¶ 34 First
, a fe l o n y o ff en se, not specific ally enumer ated by statute, is deter mined to be a forc ible felony by examining whether the felony involved the use or threat of phy sical forc e

or violence ag ainst an individual. 720 I L CS 5/2-8 (West 2010). This deter mination is entirely depende nt on the fac ts of eac h particula r case and the nature of the impermissible interac tion initiated by the offe nder. See People v. Belk
, 203 I ll. 2d 187 (2003); People v. Golson
, 32 I ll. 2d 398 (1965).

-6-¶ 35 Her e, t h e s p ec i fi c fac ts surrounding Schlosser’s prior felony conviction for indec ent

solicitati on of a chil d wi l l d etermine whether Schlosser contemplated the use of forc e or violence ag ainst another when committing the prior criminal act. People v. Belk
, 203 I ll. 2d
at 195. The criminal statute define s “solicit” as “to command, authorize, urg e, incite, reque st,

o r ad v i s e an other to perf

orm an act by any means including, but not limit ed to, in perso n , over the phone, in writing, by computer, or by adver tisement of any kind.” 720 I L CS 5/11- 6(b) (West 2002). Thus, the act of solicitation can be based on a polite reque st and does not

nece ssarily

require a thre ateningdirec tive toward a nother pe rson. ¶ 36 Ba s ed up on the undisputed fac ts resulting in his prior conviction, Schlosser’s a ctions included undeniably salac ious, but, nonetheless, long- distance, Interne t conver sations with another person. These Interne t conver sations did not incorporate or involve either an implicit

or an expli cit threat of forc e or violence to wa rd t h at person. In addition, Schlosser’s expressed desires to have phy sical contac t with another person wer e abandone d by Schlosser befor e he could meet with the intended victim and inflic t an y p h y s ical act of forc e or violence upon he r. ¶ 37 In this case, Schlosser did not actually

use threats, force , or violence when c ommitt ing the specific crime of indece nt solicitation of a child as char g ed. Due to these circ umstances, I respe ctfully submit that Schlosser’s prior conviction for indece nt solicitation of a child does not fit the statutory

definition of a f

orcible f elony

. ¶ 38 The majority notes that I llinois law presumes an intent to harm resulting from an act of sexual abuse ag ainst a minor. Howeve r, this presumption applies to act u al p h y s i cal and sexual contac t betwee n an adult and a child. See Softcheck v. Ime sch
, 367 I ll. App. 3d at 156 (citing Clay v. Kuhl
, 189 I ll. 2d at 611). In this case , Schlossler’s criminal act was completed

once he communicated, by computer, his desire to have an inappropriate rende vous with the purported 14-year -old g irl. See 720 I L CS 5/11-6(a) (West 2002). There fore
, I conclude that presumed harm or violence did not attach to Schlosser’s inappropriate act of communication alone. ¶ 39 E v en though I do not believe that Schlosser’s prior felony conviction q u al i fi es as a forc ible felony
, this conclusion does not au t o m atically entitle Schlosser to the reque sted relief

. I would rema

nd the matter for the trial court to make a fac tual deter mination whether (1) it is likely that Schlosser would act in a manner dang erous to the public; and (2) whether the reque sted relief is contra ry to the public interest as require d by the statute. See 430 I L CS 65/10(c) (West 2010). Either one of these deter minations would support the trial court’s conclusion. ¶ 40 For

these re asons, I

concur in part and dissent in par t.

-7-