The appellate court in these cases found that the SORA statutory scheme did not violate an individual's due process rights. However, in People v. Pepitone , 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297, pet. for leave to appeal granted , No. 122034, 416 Ill.Dec. 384, 84 N.E.3d 366 (May 24, 2017), this court recently rejected the reasoning in A.C. and Pollard , as to section 11-9.4-1 of the SORA statutory scheme ( 720 ILCS 5/11-9.4-1 (West 2014) ).
The trial court rejected defendant Marc Pepitone's due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant's conviction and sentence.
4–1 (West 2012) ) to be unconstitutional on substantive due process grounds in that it failed the rational basis test. See People v. Pepitone , 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297, appeal granted , No. 122034, 416 Ill.Dec. 384, 84 N.E.3d 366 (Ill. May 24, 2017) ; People v. Jackson , 2017 IL App (3d) 150154, 418 Ill.Dec. 1, 89 N.E.3d 835.
In his direct appeal, this court ruled that section 11-9.4-1(b) was facially unconstitutional. People v. Pepitone , 2017 IL App (3d) 140627, ¶ 24, 412 Ill.Dec. 317, 75 N.E.3d 297 ( Pepitone I ). Our supreme court reversed that decision and remanded for consideration of Pepitone's argument that section 11-9.4-1(b) violates the ex post facto clauses of the United States and Illinois Constitutions because his prior conviction occurred before section 11-9.4-1(b) took effect, which we did not address in Pepitone I . People v. Pepitone , 2018 IL 122034, ¶¶ 31-32, 423 Ill.Dec. 816, 106 N.E.3d 984 ( Pepitone II ).
4-1 (West 2012)) was facially unconstitutional. People v. Pepitone, 2017 IL App (3d) 140627, ¶¶ 1, 3, 75 N.E.3d 297. The supreme court disagreed and reversed the appellate court's judgment.
4–1 (West 2012)was facially unconstitutional. People v. Pepitone , 2017 IL App (3d) 140627, ¶¶ 1, 3, 412 Ill.Dec. 317, 75 N.E.3d 297. Our supreme court granted a petition for leave to appeal in Pepitone almost a year ago, so guidance from our highest court should be forthcoming.
4-1 (West 2014)) (prohibiting sex offenders from living or being present within 500 feet of a public park) to be unconstitutional on its face. People v. Pepitone, 2017 IL App (3d) 140627, ¶ 24. We note that Pepitone's scope is restricted to only the public parks statute.
Moreover, the supreme court has repeatedly held that SORA's requirements do not constitute punishment. People v. Cardona, 2013 IL 114076, ¶ 24; People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009) (and cases cited therein); see also Smith v. Doe, 538 U.S. 84, 103 (2003) (a State may make "reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences" and legislating with respect to certain sex offenders as a class did not make the statute punitive); but see Tetter, 2018 IL App (3d) 150243, ¶¶ 56, 69 (finding the sex offender statutes constitute punishment).. ¶ 21 We thus reject defendant's reliance on State v. Pepitone, 2017 IL App 3d 140627 (appeal allowed by People v. Pepitone, Ill., May 24, 2017). There, the third district held section 11-9.4-1(b) of the Criminal Code of 2012 (720 ILCS 5/11-9.4-1(b) (West 2012)), banning convicted sex offenders from public parks, was not a reasonable method of protecting the public and was therefore facially unconstitutional.
Id. ¶ 84; see also People v. Pollard, 2016 IL App (5th) 130514, ¶¶ 41-43. But see People v. Pepitone, 2017 IL App (3d) 140627, ¶ 24, appeal allowed, No. 122034 (Ill. May 24, 2017) (holding that section 11-9.4-1(b), prohibiting sex offenders from being present in public parks, is facially unconstitutional because it criminalizes potentially innocent conduct); People v. Jackson, 2017 IL App (3d) 150154, ¶ 29 (same). Thus, although the scheme may be imperfect, it is rationally related to the legitimate state interest of protecting the public from sex offenders and not unconstitutional on its face.
4–1 (West 2012) ) to be facially unconstitutional. People v. Pepitone , 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297. The majority held that the statute was not rationally related to its legislative purpose, protecting the public from dangerous sexual predators.