Opinion
No. 1-15-0403
08-24-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMOND THOMAS, 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.
No. 14 CR 5071
Honorable Mary Colleen Roberts, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices McBride and Burke concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court of Cook County is affirmed; defendant failed to timely register with police after changing his address; defendant's constitutional challenge to the Sex Offender Registration Act fails because defendant has not shown registration is punitive.
¶ 2 Defendant, Edmond Thomas, appeals from his conviction for violating the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2016)). Defendant failed to register his change of
address with Chicago police. Following a bench trial, defendant was found guilty of violating the Act and sentenced to six years' imprisonment. Defendant appeals, contending the Act is facially unconstitutional and his punishment therefore invalid. For the reasons that follow we affirm the judgment of the circuit court.
¶ 3 BACKGROUND
¶ 4 In October 1991, defendant committed aggravated criminal sexual abuse when he displayed a gun and forced a sixteen-year-old victim to perform a sexual act upon him. In 1992, defendant was convicted of aggravated sexual abuse and sentenced to six years' imprisonment. In March 2014, defendant was arrested for failing to register his change of address with police, as he was required to do by the Act. The Act requires sexual predators and certain sex offenders to register in person with police when they change their address:
"If any person required to register under this Article lacks a fixed residence or temporary domicile, he or she must notify, in person, the agency of jurisdiction of his or her last known address within 3 days after ceasing to have a fixed residence and if the offender leaves the last jurisdiction of residence, he or she, must within 3 days after leaving register in person with the new agency of jurisdiction." 730 ILCS 150/6 (West 2016).
Sexual predators and certain sex offenders must
"provide accurate information as required by the Department of State Police. Such information shall include a current photograph, current address, current place of employment, the sex offender's or sexual predator's telephone number, including cellular telephone number, the employer's telephone number, school attended, all e-mail addresses, instant messaging identities, chat room identities,
and other Internet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other Internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information." 730 ILCS 150/3(a) (West 2016).
In addition to the registration requirement, "[t]he person shall pay a $100 initial registration fee and a $100 annual renewal fee to the registering law enforcement agency having jurisdiction. The registering agency may waive the registration fee if it determines that the person is indigent and unable to pay the registration fee." 730 ILCS 150/3(c)(6) (West 2016). Certain individuals "adjudicated to be sexually dangerous and [are] later released or found to be no longer sexually dangerous and discharged, shall register for the period of his or her natural life. A sexually violent person or sexual predator shall register for the period of his or her natural life." 730 ILCS 150/7 (West 2016).
"Any other person who is required to register under this Article shall be required to register for a period of 10 years after conviction or adjudication if not confined to a penal institution, hospital or any other institution or facility, and if confined, for a period of 10 years after parole, discharge or release from any such facility." Id.
Failure by a defendant to comply with these registration requirements results in an extension of the registration period "for 10 years." Id. Additionally, not abiding by these requirements constitutes a Class 3 felony. 730 ILCS 150/10(a) (West 2016).
¶ 5 It was adduced at defendant's trial that defendant registered his address as a mission in Chicago on December 5, 2013. When defendant registered with police in December 2013, he
acknowledged he understood he was required to register within three days of changing his address, or within 90 days if he did not change his address. In February 2014 police sought to verify defendant's residence. Police went to the mission defendant listed as his residence when he last registered. At the mission, police were informed defendant had been discharged on December 31, 2013. After he voluntarily arrived at Chicago police headquarters on March 6, 2014, police arrested defendant. Police gave defendant Miranda warnings and defendant informed police he moved to a new address in February 2014. Defendant was convicted for failing to register with police within three days of changing his address. Finding mitigating circumstance due to defendant's voluntary completion of a drug rehabilitation program, the court sentenced defendant to the minimum six years' imprisonment (a class X sentence due to defendant's criminal history). This appeal followed the denial of defendant's motion to reconsider his sentence. Defendant does not refute the facts underlying his conviction, but contests the constitutionality of the statute he was convicted under.
¶ 6 ANALYSIS
¶ 7 Defendant challenges his conviction for failing to register with police within three days of changing his address. Defendant contends his conviction should be overturned because the Act is facially unconstitutional. Defendant contends that not only is the section of the Act requiring him to register a change of address within three of days of moving (730 ILCS 150/6 (West 2016)) unconstitutional for imposing ex post facto punishment in violation of the United States and Illinois Constitutions (U.S. CONST. art. I, § 10, cl. 1; Ill. CONST. 1970 art. I, § 16), but also is cruel and unusual punishment violating the Eight Amendment of the United States Constitution (U.S. CONST. amend. VIII) and a disproportionate punishment under the proportionate penalties clause of the Illinois Constitution (Ill. CONST. 1970, art. I, § 11).
Defendant contends he has standing to not only challenge the sections of the Act he was charged under, but also the Act's statutory scheme because he claims he is within the class of individuals affected by the statutory scheme.
¶ 8 Standard of Review
¶ 9 Review of a statute's constitutionality creates a question of law this court reviews de novo. People v. Devenny, 199 Ill. 398, 399 (2002). "A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity." Id. at 400. Defendant contends the Act is facially unconstitutional. A facial constitutional challenge "is the most difficult challenge to mount successfully [citations], because an enactment is facially invalid only if no set of circumstances exists under which it would be valid." Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008). A statute is facially unconstitutional if it is found unconstitutional under any set of facts, regardless of their application to the present case. People v. Thompson, 2015 IL 118151, ¶ 36. "[S]o long as there exists a situation in which a statute could be validly applied, a facial challenge must fail." Hill v. Cowan, 202 Ill. 2d 151, 157 (2002). Whether defendant may raise his facial challenge to the Act turns on whether he has standing to bring his claim.
¶ 10 Defendant's Standing to Raise a Constitutional Challenge Against the Act
¶ 11 The Act contains distinct registration provisions for people convicted of different types of sexual offenses. 730 ILCS 150/1-12 (West 2016). The different sections of the Act apply in different circumstances and not all are applicable against the same defendant. In this case defendant mounted a constitutional challenge against not only the provisions applicable to him, but challenges the Act's entire statutory scheme because it collectively imposes an ex post facto penalty, constitutes cruel and unusual punishment, and is not a proportionate penalty. The State
concedes defendant has standing to challenge provisions which are applicable to him. However the State argues he does not have standing to challenge provisions in the Act that do not apply to his circumstances. This matter has already appeared before this court. In Avila-Briones we found the defendant had standing to challenge the constitutionality of Act's entire statutory scheme raising the same issues as this defendant. People v. Avila-Briones, 2015 IL App (1st) 132221.
¶ 12 The doctrine of standing is an element of justiciability ensuring "courts are deciding actual specific controversies, and not abstract questions or moot issues." In re Marriage of Rodriguez, 131 Ill. 2d 273, 279-80 (1989). This requires all parties in the suit have a real interest in the outcome of the controversy. "To have standing to challenge the constitutionality of a statute a person must have suffered or be in immediate danger of suffering a direct injury as a result of enforcement of the challenged statute." People v. Greco, 204 Ill. 2d 400, 409 (2003). Here defendant raises two distinct constitutional challenges: he argues an ex post facto penalty was imposed on him, and he was given a cruel and unusual and disproportionate punishment. Defendant contends he has not only been unconstitutionally punished, but is also at risk of injury from the Act's statutory scheme such that he should be allowed to challenge the Act's entire statutory scheme. For an individual to have standing to sue for an injury, "[t]he claimed injury must be (1) distinct and palpable; (2) fairly traceable to defendant's actions; and (3) substantially likely to be prevented or redressed by the grant of the requested relief." Chicago Teachers Union, Local 1 v. Board of Education of City of Chicago, 189 Ill. 2d 200, 207 (2000).
¶ 13 In People v. Avila-Briones we concluded a similarly situated defendant had standing to bring his ex post facto, cruel and unusual penalty, and disproportionate penalty claims even though the State contended the defendant "had not suffered any injury or [was] charged with
violating" other conditions of the Act. Avila-Briones, 2015 IL App (1st) 132221, ¶ 35. We rejected the State's contention by noting " 'the fact that a party may be forced to alter his behavior so as to avoid penalties under a potentially illegal regulation is, in itself, a hardship *** it is not necessary that [a party] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.' " Id. (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Defendant raises a purely legal question and "defendant will have to be on guard to ensure that his day-to-day behavior does not run afoul of the tight controls on his movements and behaviors." Id. at ¶ 36.
¶ 14 Determining whether a law imposes an ex post facto penalty does not turn on the harshness of the punishment, but whether the law disadvantages and retroactively applies to a defendant. People v. Malchow, 193 Ill. 2d 413, 418 (2000). "A law disadvantages a defendant if it criminalizes an act that was innocent when done, increases the punishment for a previously committed offense, or alters the rules of evidence by making a conviction easier." Id. Because defendant claims the Act disadvantages him by imposing an unconstitutionally cruel and usual punishment, disproportionate penalty, and an unconstitutional ex post facto punishment, resolution "of this contention turns on the question of whether the provisions of the Registration Act and the Notification Law constitute punishment." Id. at 419 (citing People v. Matkovick, 101 Ill. 2d 268 (1984)). If the Act's registration requirement is not a form of punishment then it cannot be an ex post facto penalty, a disproportionate penalty, or a cruel and unusual punishment, and defendant's constitutional challenge will necessarily fail. We follow our ruling in Avila-Briones and find defendant has standing to raise his constitutional challenge.
¶ 15 Registration Requirements for Convicted Sex Offenders Are Not Punishment
¶ 16 Defendant claims the Act is unconstitutional because it imposes an ex post facto penalty,
constitutes cruel and unusual punishment, and is not a proportionate penalty. The Illinois constitution's "proportionate penalties clause is coextensive with the federal constitution's prohibition against cruel and unusual punishment. [Citation.] Both provisions apply only to the criminal process where the government takes direct action to inflict punishment." People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 206-07 (2009). As noted above, for defendant to succeed on any of these claims defendant must first prove the registration requirements imposed by the Act are a form of punishment. Malchow, 193 2d at 419. Our supreme court has consistently held the Act's registration requirements are not a form of punishment. Id.; Konetski, 233 Ill. 2d at 207; People v. Adams, 144 Ill 2d 381, 389 (1991); In re J.W., 204 Ill. 2d 50, 75-76 (2003). We also noted in Avila-Briones:
"We need not revisit whether the Statutory Scheme constitutes punishment or not because, even assuming that it did, it would not violate the eighth amendment or proportionate penalties clause. A lifetime of restrictions similar to parole or probation is not a grossly disproportionate sentence for defendant's offense, and the Statutory Scheme serves legitimate penological goals." Avila-Briones, 2015 IL App (1st) 132221 at ¶2.
Though our case law has repeatedly held registration requirements for sex offenders are not forms of punishment, defendant contends the expansion of the Act's registration requirements in 2013 tipped the Act over the line into a form of punishment. We find defendant fails to support this argument.
¶ 17 The legislative intent behind the Act was not punitive, but rather "to create an additional measure of protection for children from increasing incidence of sexual assault and child abuse." Malchow, 193 Ill. 2d at 420. Even when legislative intent is not to create a punitive scheme, the
effect of a statute may be so punitive as to negate the legislature's intent. Id. at 421. To determine whether a statute has a punitive effect in spite of its nonpunitive intent, Illinois courts use the seven-factor intents-effects test enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Malchow, 193 Ill. 3d at 421.
"Those factors are: (1) whether the 'sanction' involves an affirmative disability or restraint; (2) whether the sanction has been historically regarded as punishment; (3) whether the sanction comes into play only on a finding of scienter; (4) whether operation of the sanction will promote retribution and deterrence; (5) whether the behavior to which the sanction applies is already a crime; (6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and (7) whether the sanction appears excessive in relation to the alternative purpose assigned." Id.
Contrary to defendant's contention, we find that evaluation of the Act under these seven factors indicates the Act is not punitive. Defendant has not shown how analysis of the Act under these factors has altered in any way since we found the Act was not a form of punishment in Avila-Briones, 2015 IL App (1st) 132221.
¶ 18 As to the first factor of whether the Act imposes an affirmative disability or restraint, it is well settled law that the Act's registration requirement does not impose an affirmative disability or restraint. People v. Logan, 302 Ill. App. 3d 319, 329 (1998).
"the registration requirement places no more constraint on the liberty of someone required to register with the local police authority than do many of the well-established civil disabilities associated with felony convictions in Illinois, such as limitations on the possession of firearms, the right to vote, or the right to hold
public office. [Citation.] We therefore conclude that the registration process is a de minimis administrative requirement. Id.
Defendant argues the new statutory scheme amounts to "supervision" because he must register in person. Defendant notes Alaska's sex offender registration act was upheld as constitutional in part because it did not require reporting in person (Smith v. Doe, 538 U.S. 84, 100-01 (2003)), while the Act in Illinois contains an in-person registration requirement. However, our supreme court noted the Act's "statutory scheme did not subject the offenders to an affirmative disability or restraint, as offenders remained free to change jobs or residences." People v. Cornelius, 213 Ill. 2d 178, 209 (2004). Defendant fails to demonstrate how an in-person registration requirement prevents him from changing jobs or residence or traveling. In-person reporting is not an affirmative restraint. The 1998 version of the Act also required in-person reporting and the Malchow court held the Act was constitutional, finding the defendant's "movements and activities are not restricted in any way." Malchow, 193 Ill. 2d 421. Defendant fails to explain how the 2013 version of the Act alters this analysis. Defendant's only contention is that the registration requirement changed from 10 days to 3 days, but defendant fails to provide analysis why this constitutes a meaningful difference under the Mendoza-Martinez factors. Further, the Act has "a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the presence of sex offenders in their community." Cornelius, 213 Ill. 2d at 209. The Act serves a legitimate purpose of ensuring the actual sex offender is the one registering and not some other person on the internet or telephone. Defendant has not shown the Act changed in any distinguishing manner to now constitute an affirmative restraint.
¶ 19 Defendant contends the second Mendoza-Martinez factor favors him, arguing this "sanction has been historically regarded as punishment," and the Act is akin to supervised
release or probation. We disagree. Defendant insists the Act has been historically regarded as punishment because the Act's minimum registration period is ten years and can be a lifetime for many. Defendant's argument fails to analogize the Act's registration requirement to supervised release or parole, which courts have found to be fundamentally distinct. "The Court rejected the comparison of Alaska's registration system to parole or supervised release, which have been regarded as punishment. [Citation.] The Court found that, under the registration law, sex offenders were 'free to move where they wish and to live and work as other citizens, with no supervision,' as opposed to parolees, face 'a series of mandatory conditions.' " Avila-Briones, 2015 IL App (1st) 132221, ¶ 48. While defendant may be required to register his address, police have no authority under the Act to revoke defendant's registration. Defendant is not required to seek permission before moving or traveling, nor is any supervising officer assigned to monitor registrant. For these reasons, the Supreme Court of the United States found Alaska's sex offender registration law did not amount to probation or supervised release. Smith, 538 U.S. at 101-02. Defendant has not provided distinguishing characteristics in the Act here that alters the analysis of why the registration requirement has not been historically regarded as punishment or as a form of probation or supervised release.
¶ 20 Because they "are of little weight in this case," we group our analysis concerning the third and fifth Mendoza-Martinez factors of "whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime." Smith, 538 U.S. at 105. The Smith court found Alaska's registration law's "regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation." Id. Defendant fails to
distinguish the Act from the Smith court's finding Alaska's registration law had little impact under the third and fifth factors. Here, the Act's registration requirements are only triggered by past criminal conduct, just as the notification provisions the Malchow court upheld. "The only requirement for the notification provisions to become effective is that the offender is released into the community. Accordingly, this factor does not indicate a punitive intent." Malchow, 193 Ill. 2d at 422. Just as the third and fifth factors were of little weight in Malchow and Smith, they are of little weight here.
¶ 21 Defendant argues the Act is punitive under the fourth Mendoza-Martinez factor because the Act has no individualized assessment of risk and therefore promotes retribution or deterrence. We disagree. The Act primarily concerns protecting the public from sex offenders, not acting as retribution or deterrence.
"The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. [Citation] As stated in Hawker: 'Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application....' [Citation.] The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause." Smith, 538 U.S. at 103-04.
Similarly, the Malchow court found the legislative intent for the Act's registration and
notification requirements
"was protection of the public from sex offenders. The limited release of information to those likely to encounter sex offenders could hardly be characterized as 'retribution.' As to the deterrence factor, it is possible that the Notification Law would have a deterrent effect. However, it is unlikely that those not already deterred from committing sex offenses by the possibility of a lengthy prison term will be deterred by the additional possibility of community notification. Moreover, even an obvious deterrent purpose does not necessarily make a law punitive. [Citation.] We believe the statute's purpose is protection of the public and that it does not significantly promote either retribution or deterrence." Malchow, 193 Ill. 2d at 423.
Defendant fails to meaningfully distinguish the Act from the version of the Act upheld in Malchow or from Alaska's registration law upheld in Smith.
¶ 22 Under the sixth factor, we examine whether the Act has "some purpose other than punishment that can rationally be associated with the law. As set out above, we believe the Notification Law shows on its face that its purpose is protection of the public rather than punishment." Malchow, 193 Ill. 2d at 423. We find defendant failed to distinguish the Act's registration requirement under the sixth factor from the version of the Act upheld in Malchow. In any case, defendant himself concedes that even if he were to prevail on this factor, it still has "little weight" in our overall determination of whether the Act is punitive.
¶ 23 Finally, defendant argues the seventh Mendoza-Martinez factor weighs in favor of finding the Act punitive because the Act is excessive and has no mechanism for a registrant to petition for relief from registration upon a showing of reformation. However, "we consider
whether the provisions of the [Act] are excessive in relation to the goal of protecting the public from sex offenders." Malchow, 193 Ill. 2d at 423. The Malchow court found registration requirements for most sex offenders terminated after 10 years, and that the legislature's chosen measure of implementing "its goal of protecting the public from sex offenders" was not excessive. Id. at 424. Defendant has not shown a lack of a mechanism to petition for relief from registration changes the analysis under the seventh Mendoza-Martinez factor for determining whether a statute's provisions are excessive. The Malchow court did not find this problematic. Defendant notes how a dissenting opinion in Smith found registration statutes are excessive if they do not account for "the possibility of rehabilitation." Smith, 538 U.S. at 116-17. This runs contrary to the findings of the Smith majority, and defendant fails to provide citation to any Illinois or Federal authority running contrary to the Malchow court's finding the Act's lack of a mechanism for relief from registration upon showing of rehabilitation was not excessive in relation to its purpose of protecting the public from sex offenders.
¶ 24 Defendant argues the Act's lifetime registration requirements apply to more individuals now. We find this argument unavailing. The Smith court found "[t]he duration of the reporting requirements is not excessive" for Alaska's registration act's requirement of 15 years for "single, nonaggravated sex crime[s]" or otherwise natural life. Id. at 123. The court noted how "[e]mpirical research on child molesters, for instance, has shown that, '[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release,' but may occur 'as late as 20 years following release.' " Id. Defendant does not demonstrate how the Act's registration period is distinguishably more excessive now.
¶ 25 Defendant does not prevail on his claims the Act is unconstitutional because defendant failed to prove the Act is a form of punishment. For defendant to prevail on his claim the Act is
an unconstitutional ex post facto penalty, or a cruel and unusual punishment, or disproportionate penalty, defendant must first show the Act is a form of punishment. Malchow, 193 Ill. 2d at 419. Whether the Act is a form of punishment turns on an evaluation of the Act under the seven Mendoza-Martinez factors. Id. at 421. Defendant has not proven our analysis of the Act under these factors should alter from our previous decision in Avila-Briones or our supreme court's past holdings on sex offender registration laws. Because the Act is not a form of punishment, defendant does not prevail on his claim his imprisonment is an unconstitutional punishment.
¶ 26 CONCLUSION
¶ 27 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 28 Affirmed.