Opinion
No. 1-16-2062
11-28-2018
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORTILLAS HARRIS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County, Illinois, Criminal Division. No. 15 CR 13287 The Honorable James Charles P. Burns, Judge Presiding. PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The evidence presented at trial sufficiently established that the defendant had established a "temporary domicile" in Chicago, so as to permit the jury to find him guilty of failing to register as a sex offender (730 ILCS 150/3(a)(1) (West 2014)). The fines, fees and costs order is corrected. ¶ 2 Following a jury trial in the circuit court of Cook County, the defendant, Cortillas Harris, was convicted of the offense of failing to register as a sex offender in violation of section 150/3(a)(1) of the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/3(a)(1) (West 2014)) and sentenced to 54 months' imprisonment. The conviction was based upon the defendant's failure to register as a sex offender with the Chicago police department within three days of establishing a "temporary domicile" in the city. The defendant appeals his conviction contending that the State failed to prove beyond a reasonable doubt that he established a "temporary domicile" in Chicago, so as to trigger the reporting requirements of section 150/3(a)(1) of SORA (730 ILCS 150/3(a)(1) (West 2014)). In addition, the defendant contests various fines and fees assessed by the trial court. For the reasons that follow, we affirm the defendant's conviction and order the correction of the fines, fees and costs order.
¶ 3 I. BACKGROUND
¶ 4 In August 2015, the defendant was indicted on one count of violating section 150/3(a)(1) of SORA (730 ILCS 150/3(a)(1) (West 2014)) in that he, "having been previously convicted of aggravated criminal sexual assault under case number 95 CR 1349801, knowingly failed to report in person, with the Chicago police department within three days of establishing a residence or temporary domicile in the city of Chicago" between the dates of July 7, 2015 and July 16, 2015. In the indictment, the State sought to sentence the defendant as a Class 2 offender based on a prior conviction for failure to register as a sex offender (in case No. 10 CR 1874401). ¶ 5 Before trial, the defendant sought a plea conference pursuant to Illinois Supreme Court Rule 402 (Ill. S. Ct. R. 402 (eff. July 1, 2012)). At that conference, the State presented evidence that in 1995, the then 18-year-old defendant was convicted of aggravated criminal sexual assault, against a 6-year old victim. The defendant was sentenced as a Class X offender to ten years' in prison. The defendant was subsequently required to register as a sex offender under SORA in his place of residence in Kenosha, Wisconsin, and last registered there in April 2012. The State further presented evidence that on July 16, 2015, the defendant was stopped for a traffic violation in Chicago. The defendant told the Chicago police that he resides in Kenosha, but that he was helping out his sister in Chicago, traveling back and forth from Kenosha to Chicago, and staying with his sister for no more than two days at a time. ¶ 6 The State further presented evidence of the defendant's five prior convictions, including three convictions for failure to register under SORA: (1) a Class 4 conviction in 2004 for which he was sentenced to one year in prison; (2) a Class 3 conviction in 2008 for which he was sentenced to two years' in prison; and (3) a Class 3 conviction in 2010, for which he received two years' in prison. The defendant's two additional prior convictions (in 2004 and 2013) were both for possession of a controlled substance. ¶ 7 Based on the aforementioned evidence and the arguments of counsels, the trial court recommended a sentence of four and a half years, if the defendant pleaded guilty. Following the conference, the defendant chose to proceed with a jury trial. ¶ 8 The State then filed a motion in limine seeking to admit, inter alia, two of the defendant's more recent SORA violation convictions (from 2010 and 2008) if the defendant chose to testify at trial. The court, however, precluded the introduction of both prior convictions on the basis of prejudice. ¶ 9 The cause proceeded to a jury trial at which the following evidence was adduced. The defendant's sister, Margarita Harris, testified that she lives in Chicago with her four children. On the weekend of July 4, 2015, the defendant, who does not live with her, arrived from Wisconsin on the Metra train. Margarita averred that she saw him "around her house," "during some period of time," but then "he was gone." When asked to explain, she averred that the defendant was at her house during the daytime and then with his girlfriend, Tasha. While Margarita did not know exactly where Tasha lived, she acknowledged that it was in the city of Chicago. ¶ 10 Margarita also averred that the defendant did not have a vehicle in Chicago and that the plan for his return to Wisconsin included her buying him a Metra train ticket. She stated that she was about to buy him that ticket "on Wednesday before he got locked up. He got locked up on Monday." When asked how much time the defendant had spent in Chicago, Margarita affirmatively stated that he was in Chicago for "about a week and a half to two weeks." ¶ 11 On cross-examination, Margarita explained that she worked a night shift from 2 to 10 p.m. As a result she would leave her home in the afternoon between 1 and 1:30 p.m., and return around 10:30 and 10:45 p.m. Margarita testified that she only saw the defendant in her house "a couple of times" after she returned from work at night. ¶ 12 On cross-examination, Margarita also stated that she saw the defendant on July 4, 2015, but after that did not see him for "days on end." She admitted that the defendant did not have a suitcase when he arrived at her house on July 4, and that he did not have a bedroom or clothes in her house. She also acknowledged that she was called to the police station on July 16, 2015, because the defendant was arrested. ¶ 13 Cook County sheriff's officer Alexander Jameson next testified that his job responsibilities entail registering "criminal offenders" among other things under SORA. He averred that on May 19, 2015, he met with the defendant at 2650 South California Avenue to notify him of the SORA registration requirements. As part of this conversation, he presented the defendant with an Illinois SORA notification form, which incorporated the rules and regulations for SORA, including the duty to register with a local police department if he spends three or more days in any location. The defendant initialed his name next to each paragraph of the SORA rules and regulations, and signed the form at the bottom. ¶ 14 Officer Jameson further testified that during this conversation, the defendant told him he would be residing in Kenosha, Wisconsin, and that this information was noted on the SORA notification form. He explained, however, that the process of filling out and signing the notification form is not the same as registering the defendant, and that by signing the form the defendant was merely acknowledging his duty to register in his place of residence within the next three days, as well as, to register in any other location where he would be spending three or more days. ¶ 15 Officer Jameson acknowledged that on the notification form the defendant's name was listed as "Mack Harris," which was a "previous alias," but that he signed the form as "Cortillas Harris." ¶ 16 On cross-examination, Officer Jameson acknowledged that if the defendant provides his fixed address in Kenosha he is not required to register in Illinois, as long as he spends fewer than three days in Illinois. As such, if a defendant were to visit somebody in Illinois for a single day, he was not required to register. ¶ 17 The SORA notification form was introduced into evidence. That form contains a paragraph initialed by the defendant, regarding his obligation for, among other things, reporting a change of address. Relevant to this appeal, that paragraph states: "Temporary absences for more than 3 days in a calendar year require you to register your new address." ¶ 18 Sergeant Maria Jacobson, the commanding officer of the criminal registration section of the Chicago police department next testified that after reviewing the registration system, she did not find any record of the defendant registering as a sex offender in Chicago between July 7, 2015 and July 16, 2015. ¶ 19 Chicago police officer Chris Warjas next testified that at about 1 a.m. on July 16, 2015, together with his partner, he pulled over a white Chevrolet on Central Avenue, because the vehicle did not have a front license plate. According to Officer Warjas, the defendant, who was the driver and only occupant of the vehicle, was asked to produce a driver's license and proof of insurance. When the defendant could produce neither, he was placed under arrest. ¶ 20 The parties stipulated that the defendant was previously convicted of a qualifying sex offense for the charge of failure to register as a sex offender. In addition, the State admitted into evidence a certified copy of the defendant's 1995 conviction for aggravated criminal sexual assault in case No. 95 CR 1349801. That document contained no details about the sexual assault. ¶ 21 After the State rested, defense counsel moved for a directed finding, but the trial court denied that motion. Afterwards, the defendant declined to testify and the defense presented no evidence. ¶ 22 After closing arguments, the jury was instructed that in order to sustain the charge of failure to register as a sex offender the State had to prove beyond a reasonable doubt that (1) the defendant was a sex offender; and (2) the defendant knowingly failed to register (in person with the Chicago police department) three or more days after establishing a "temporary domicile." The jury was additionally instructed that a "temporary domicile" is "any and all places where the sex offender resides for an aggregate period of time of three or more days during any calendar year." ¶ 23 During deliberations, the jury sent out a note asking, "Does the three day period have to be continuous (72 straight hours) or three days in an annual period?" The court, with the parties in agreement, responded that the jury had the evidence and should reread the jury instructions. The jury subsequently found the defendant guilty of failing to register as a sex offender. ¶ 24 After trial, defense counsel filed a motion for a new trial. In addition, the defendant filed a pro se motion for judgment notwithstanding the verdict and a motion for a new trial in which he claimed, inter alia, that his defense counsel was ineffective for failing to cross-examine the State's witnesses. The trial court noted that these were "Krankel issues" and held a hearing at which it questioned the defendant about his allegations. The defendant told the court that defense counsel "did not object to anything," failed to properly cross-examine his sister, and failed to call his step-mother, who would have testified that he lived in Wisconsin, as a witness. The trial court disagreed with the defendant and held that counsel was effective and that the defendant was attempting to challenge the sufficiency of the evidence. Accordingly, the trial court denied both the defendant's pro se motion and defense counsel's motion for a new trial. ¶ 25 After a sentencing hearing, the defendant was sentenced to 54 months' imprisonment, followed by two years of mandatory supervised release (MSR). In addition, the court assessed a total of $374 in various fines and fees. The defendant now appeals.
The crime involved the defendant placing his penis in the victim's vagina, which caused her to bleed. The defendant was caught when the victim's mother saw the blood in the victim's underwear.
Pro se posttrial allegations of ineffective assistance of trial counsel must be preliminarily inquired into by the trial court pursuant to our supreme court's decision in People v. Krankel, 102 Ill. 2d 181 (1984).
¶ 26 II. ANALYSIS
¶ 27 A. Sufficiency of Evidence
¶ 28 On appeal, the defendant first contends that the State failed to prove beyond a reasonable doubt that he failed to register as a sex offender in violation of section 150/3(a)(1) of SORA (730 ILCS 150/3(a)(1) (West 2014)). For the reasons that follow, we disagree. ¶ 29 It is well-settled that "when considering a challenge to the sufficiency of the evidence, a reviewing court must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the required elements beyond a reasonable doubt." People v. Newton, 2018 IL 122958, ¶ 24; see also People v. Wright, 2017 IL 119561, ¶ 70; People v. Brown, 2013 IL 114196, ¶ 48; see also People v. Cunningham, 212 Ill. 2d 274, 280 (2004) (citing People v. Smith, 185 Ill. 2d 532, 541 (1999)). "[I]t is not the function of this court to retry the defendant." People v. Evans, 209 Ill. 2d 194, 209 (2004). All reasonable inferences from the evidence must be drawn in favor of the prosecution. Newton, 2018 IL 122958, ¶ 24. " '[I]n weighing evidence, the trier of fact is not required to disregard inferences which flow normally from the evidence before it, nor need it search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt.' " People v. Hardman, 2017 IL 121453, ¶ 37 (quoting People v. Jackson, 232 Ill. 2d 246, 281 (2009)). This court will not reverse a criminal conviction unless the evidence is so contrary to the verdict, or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant's guilt. People v. Wright, 2017 IL 119561, ¶ 70; see also Brown, 2013 IL 114196, ¶ 48. This same standard will apply regardless of whether the evidence is direct or circumstantial. Brown, 2013 IL 114196, ¶ 48; see also People v. Cooper, 194 Ill. 2d 419, 431 (2000). ¶ 30 SORA was designed to aid law enforcement agencies in monitoring the whereabouts of sexual offenders by allowing " 'ready access to crucial information' " about their residency and movements. People v. Molnar, 222 Ill. 2d 495, 499 (2006) (quoting People v. Adams, 144 Ill. 2d 381, 388 (1991)). Consistent with this objective, section 3(a) of SORA imposes upon sex offenders and sexual predators the duty to register with the chief of police or sheriff in the jurisdiction where they reside or are "temporarily domiciled for a period of time of 3 or more days." 730 ILCS 150/3(a) (West 2014). Section 3(a) further provides that for purposes of that article a "temporary domicile" is defined as "any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year." 730 ILCS 150/3(a) (West 2014). " 'Inherent in each definition is the idea of a specific location.' " People v. Gomez, 2017 IL App (1st) 142950, ¶ 15 (quoting People v. Robinson, 2013 IL App (2d) 120087, ¶ 23). Thus, to establish a violation of section 3(a) of SORA, "the State was required to prove both (1) that the defendant resided or was temporarily domiciled at a specific location within Chicago, and (2) that the defendant failed to register there." Gomez, 2017 IL App (1st) 142950, ¶ 16 (citing 730 ILCS 150/3(a) (West 2014)). ¶ 31 On appeal, the defendant does not dispute that he failed to register within the city of Chicago. Rather, he solely contends that the State failed to produce any evidence that he established a "temporary domicile" in Chicago such that he was required to register there under section 3(a) of SORA (730 ILCS 150/3(a) (West 2014)). We disagree. ¶ 32 When viewed in the light most favorable to the State, the evidence presented at trial established that the defendant was temporarily domiciled in Chicago, so as to trigger the reporting requirements of section 3(a) of SORA. Id. At trial, Officer Jameson testified that when reviewing and signing the SORA notification form with the defendant on May 19, 2015, the defendant told him that his residence was Kenosha, Wisconsin. In addition, the defendant initialed each paragraph of the SORA rules contained in that form, including the provision notifying him that he was obligated to register with the local police department of any municipality in which he spent more than three days. ¶ 33 The defendant's sister, Margarita, testified that the defendant arrived in Chicago by train over the July 4, 2015, weekend. She affirmatively stated that the defendant was in Chicago for "about a week and half to two weeks." According to Margarita, the defendant stayed with his girlfriend Tasha, in the city, but spent time in Margarita's house every day and for "a couple of nights." In addition, the defendant had no car, and was waiting for Margarita to buy him a train ticket to return home to Wisconsin when he was arrested on July 16, 2015. The defendant offered no evidence to rebut Margarita's testimony. From this record, it is impossible for us to conclude that no rational trier of fact could have found that the defendant had traveled from his residence in Kenosha to Chicago to visit his sister and girlfriend, and stayed there for an aggregate of a minimum of three days between July 7, 2015, and July 16, 2015, so as to establish a "temporary domicile" in the city. Accordingly, we find that the jury's finding that the defendant failed to register as a sex offender was not against the manifest weight of the evidence. ¶ 34 In reaching this conclusion, we are not persuaded by the defendant's reliance on Gomez, 2017 IL App (1st) 142950. In that case, the defendant attempted to register an invalid address in Chicago "at some point" between his release from prison in July 2012 and his arrest on an unrelated matter in June 2013. Gomez, 2017 IL App (1st) 142950 at ¶¶ 5, 25. The State provided no other evidence, relying solely on the inference that, because he attempted to register in Chicago and was then arrested some time later, again in Chicago, it was likely that he was in Chicago for the bulk of the time in between. Id. at ¶ 25. On this record, the court in Gomez reversed the defendant's conviction, holding that the State had provided "no evidence proving that the defendant had resided anywhere in Chicago for at least three days." Id. at ¶ 2. In doing so, the court in Gomez noted, "[t]he State would have us simply assume defendant's residence in some unspecified municipality by the mere fact that defendant did not register anywhere." Id. at ¶ 29. ¶ 35 Unlike Gomez, in the present case, the eyewitness testimony of Margarita at trial affirmatively established that the defendant spent at least three, if not more than seven days, in the city of Chicago, either at her residence or at Tasha's. ¶ 36 What is more, contrary to the defendant's position, Gomez does not require that the State provide evidence of an exact street address where a registered sex offender is staying to establish a "temporary domicile." Instead, Gomez merely stands for the proposition that a defendant's absence from a certain location does not prove his presence at an unregistered address. Gomez, at ¶ 19. Hence, the requirement that the State provide some evidence of the defendant's presence at a "specific location." Id. at 16. Under the defendant's proposed reading of Gomez, a sex offender could reside in an unregistered city indefinitely, in full view of eyewitnesses like Margarita, so long as he kept the State form knowing the street address where he slept. This proposition unmistakably runs afoul of SORA's objectives, and therefore must be rejected. See People v. Wlecke, 2014 IL App (1st) 112467, ¶ 5 ("The obvious purpose of [SORA] is to assist law enforcement agencies in tracking the whereabouts of sex offenders and to provide the public information about where they are residing."); see also Molnar, 222 Ill. 2d at 499.
¶ 37 B. Fines and Fees
¶ 38 On appeal, the defendant also challenges various fines and fees ordered by the trial court. At the time of sentencing, he was assessed $374 in fines, fees and costs. He was also awarded $1795 in presentencing credit for the 359 days he served in prison prior to his sentencing (at $5 per day). On appeal, he contends that the assessed fines, fees, and costs should be reduced from $374 to $140. Specifically, he argues: (1) that the $5 electronic citation fee (705 ILCS 105/27.3e (West 2014)) should be vacated because it was improperly imposed, and (2) that five additional assessments, totaling $244, were improperly classified as fines, rather than fees and therefore must be offset by presentence incarceration credit. These five assessments include: (1) the $190 felony complaint fee (705 ILCS 105/27.2(w)(1)(A) (West 2014)); (2) the $15 state police operations fee (705 ILCS 105/27.3a-1.5 (West 2014)); (3) the $2 state's attorney records automation fee (55 ILCS 5/4-2002.1(c) (West 2014)); (4) the $2 public defender records automation fee (55 ILCS 5/3-4012 (West 2014)); and (5) the $25 document storage fee (705 ILCS 105/27.3c (West 2014)). ¶ 39 The State initially notes that while the defendant failed to raise these claims in his postsentencing motion, under our supreme court's rulings in People v. Caballero, 228 Ill. 2d 79, 83 (2008), and People v. Lewis, 228 Ill. 2d 79, 83 (2008), we may and should review these claims under either section 110-14 of the Code of Criminal Procedure of 1963 (Criminal Code of Procedure) (725 ILCS 5/110-14(a) (West 2014)), or the plain error doctrine. See also People v. Mullen, 2018 IL App (1st) 152306. ¶ 40 At present, our courts appear split on the issue of whether we may address the second portion of the defendant's argument regarding the propriety of the classification of the five assessments as fines. Compare People v. Smith, 2018 IL App (1st) 151402, ¶¶ 4-7 with Mullen, 2018 IL App (1st) 152306, ¶¶ 33-42. However, because the State here does not argue that the defendant has forfeited review of these claims, but rather addresses their merits, we too will do the same. See Smith, 2018 IL App (1st) 151402, ¶ 7 (Reviewing the defendant's fines and fees claim where the State did not argue that the defendant had "forfeited review of his challenge to the assessed fines and fees"). We review the propriety of the court-ordered fines and fees de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 60. ¶ 41 On the merits, the State agrees with the defendant that the $5 electronic citation fee (705 ILCS 105/27.3e (West 2014)) must be vacated. It is well-established that this fee does not apply to felonies and is, therefore, inapplicable to the defendant's felony conviction for failure to register under SORA. See People v. Robinson, 2015 IL App (1st) 130837, ¶ 115; see also 705 ILCS 105/27.3e (West 2014) (electronic citation fee applies only to "traffic, misdemeanor, municipal ordinance, or conservation case[s]"). ¶ 42 With respect to the remaining five assessments, the State concedes only that the $15 state police operations fee (705 ILCS 105/27.3a-1.5 (West 2014)) was improperly classified as a fine rather than a fee and should therefore be offset by the defendant's presentence credit. See People v. Jones, 223 Ill. 2d 569, 599-601 (2006); see also People v. Milssap, 2012 IL App (4th) 1106668, ¶ 31 (holding that this assessment is a fine because it is deposited in the state police operations assistance fund, from which the state police may use it to finance any of its lawful purposes or functions, including homeland security, but has nothing to do with compensating the State for prosecuting the defendant); see also People v. Moore, 2014 IL App (1st) 112592-B, ¶ 46. ¶ 43 The State, however, disagrees with the defendant that the remaining four assessments were improperly classified, so as to be subject to presentence incarceration credit. We therefore address the merits of each. ¶ 44 The defendant first asserts that the $190 felony complaint filing fee (705 ILCS 105/27.2a (w)(1)(A) (West 2014)) is a fine because the assessment does not reimburse the State for costs incurred as a result of prosecuting the defendant, and because even if it were, the $190 amount is purely an arbitrary figure imposed with the purpose of financing the clerk's mission as a whole, and not directly related to this particular defendnat. We disagree. This court has already considered the same challenges raised here by the defendant and found this assessment to be a fee, because it is "compensatory and a collateral consequence of [the] defendant's conviction." People v. Tolliver, 363 Ill. App. 3d 94, 97 (2006). "These charges represent part of the costs incurred for prosecuting a defendant and are, therefore, not fines subject to offsetting presentence custody credit." Smith, 2018 IL App (1st) 151402, ¶ 15. ¶ 45 Similarly, the defendant here is not entitled to presentence custody credit against the $2 public defender records automation assessment fee (55 ILCS 5/3-4012 (West 2014)) and the $2 state's attorney records automation assessment fee (55 ILCS 5/4-2002.1(c) (West 2014)). While the defendant cites to People v. Camacho, 2016 IL App (1st) 140604, ¶ 56, in which a division of this court found these assessments to be fines, even Camacho itself recognized, that "every [other] published decision on this matter has determined that both the state's attorneys and public defender records automation assessments are fees." Id. ¶ 52. We disagree with Camacho, and join the bulk of legal authority which has concluded that "both assessments are fees rather than fines because they are designed to compensate those organizations for the expenses they incur in updating their automated record-keeping systems while prosecuting and defending criminal defendants." People v. Brown, 2017 IL App (1st) 150146, ¶ 38 (collecting cases). ¶ 46 Finally, we also disagree with the defendant that he is entitled to presentence incarceration credit toward the $25 document storage fee (705 ILCS 105/27.3c (West 2014)). This court has previously held that this assessment is not a fine, but rather a fee. See People v. Brown, 2017 IL App (1st) 142877, ¶ 81 (relying on Tolliver to hold that the document storage fee is a fee rather than a fine); see also People v. Heller, 2017 IL App (4th) 140658, ¶ 74 (same). We adhere to the reasoning of our prior decisions on this matter and hold that this assessment was a fee. ¶ 47 For all of the aforementioned reasons, we vacate the $5 electronic citation fee and find that the $15 state police operations fee should be offset by the defendant's presentence credit, so that the total fines, fees and costs order should be reduced to $354.
In Smith, 2018 IL App (1st) 151402, ¶¶ 4-7, one division of this appellate court has held that arguments regarding fines and fees may be forfeited because they do not involve either substantial rights, so as to trigger plain error analysis, or the ministerial act of granting credit, which is permitted pursuant to section 110-14 of the Criminal Code of Procedure (725 ILCS 5/110-14 (West 2014)). In contrast, in Mullen, 2018 IL App (1st) 152306, ¶¶ 33-38, another division of this court has held that under our supreme court's decisions in Lewis, there is no de minimis exception to plain error analysis. In addition, the Mullen court found that in Caballero our supreme court placed no limitation on the court's ability to review fines, fees and assessments at "any" time and in "any proceeding," so long as the basis for such review was "clear and available from the record." Id. at ¶¶ 39-42. The court specifically found that Caballero made no distinction between ministerial versus substantive assessment arguments. Id.
In this respect, we note that the classification of all four of these assessments as either fines or fees is an issue that is currently pending before our supreme court. See People v. Clark, 2017 IL App (1st) 150740-U, pet. for leave to appeal granted, No. 122495 (Sept. 27, 2017) --------
¶ 48 III. CONCLUSION
¶ 49 Accordingly, we affirm the defendant's conviction. We further order the clerk of the circuit court to correct the defendant's fines, fees and costs order to reflect a total of $354. ¶ 50 Affirmed; fines and fees order corrected.