2019 IL App (1st) 170117-U
FOURTH DIVISION December 12, 2019
No. 1-17-0117
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). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 0919801 ) ALTON GUY, ) Honorable ) William G. Lacy, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We affirm defendant's bench-trial conviction of failing to register as a sex offender because we find that the current sexual offender registration requirements and restrictions do not violate substantive or procedural due process protections.
¶2 Defendant appeals his bench-trial conviction for failing to register as a sex offender as
required by the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)).
On appeal, defendant argues that SORA violates substantive and procedural due process. For the
following reasons, we affirm. 1-17-0117
¶3 I. BACKGROUND
¶4 Defendant was charged with two counts of failing to register as a sex offender in
violation of SORA. 730 ILCS 150/3(a) (West 2012). In count I, the State alleged that from
December 30, 2014, to May 19, 2015, defendant failed to report in person to the Chicago Police
Department (CPD) within three days of establishing residence or temporary domicile in Chicago.
In count II, the State alleged that from December 30, 2014, to May 19, 2015, defendant failed to
report in person to the CPD within three days of being discharged from the Illinois Department
of Corrections (IDOC).
¶5 At defendant’s bench trial, Sharon Pierce, a correctional counselor at Lawrence
Correctional Center, testified that on December 24, 2014, she gave defendant his incarceration
release documents, including Illinois State Police sex offender registration forms. Pierce
completed defendant’s registration form; defendant provided an address on South Lowe Avenue
in Chicago as the address he claimed he was going to be discharged to. Pierce reviewed with
defendant his registration requirements and defendant placed his initials near each paragraph on
the form. Pierce informed defendant that he was required to register within three days of his
release from prison. Defendant was discharged from prison on December 26, 2014; he therefore
had a duty to register by December 29, 2014.
¶6 The parties stipulated that if called to testify, Chicago police detective McGovern 1 would
testify that he observed defendant come into the Criminal Registration Unit (CRU), which
handles offender registration, on January 16, 2015, and attempt to register. Defendant possessed
an identification card that listed an address on South Lowe Avenue in Chicago and defendant
stated that he was going to reside at that location. The card was issued on January 2, 2015.
1 No first name was provided.
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McGovern turned defendant away because the address on South Lowe Avenue was within 500
feet of a playground; defendant stated that he would return with a different address. The parties
also stipulated that the Lowe address was within 500 feet of a playground. The parties stipulated
that defendant had a duty to register for life due to a prior conviction for aggravated criminal
sexual abuse in Case Number 01 CR 0876101. Defendant had also been previously convicted of
failure to register in case numbers 10 CR 1324901 and 12 CR 1379401.
¶7 Chicago Police Department detective Crystal Nix testified that she was assigned to the
CRU and defendant came to the CRU on April 24, 2015, and attempted to register as a sex
offender. However, the address listed on defendant’s identification, on South Lowe Avenue, was
within 500 feet of a playground and consequently could not be registered. Defendant also did not
have the required $100 fee for registration. Defendant indicated he would have difficulty paying
the fee, so Nix gave him a waiver application. Defendant indicated that he was actively looking
for shelter. The CRU registration log contained an entry reflecting that defendant was turned
away due to lack of a fee and an improper address.
¶8 The parties stipulated that on May 20, 2015, an officer observed defendant at the address
on Lowe Avenue in Chicago and arrested him.
¶9 Eric Guy, defendant’s brother, testified for the defense. Eric testified that defendant came
to his home after release from the penitentiary early in the morning of December 26, 2014, and
informed Eric that he had to register right away, otherwise “they are going to take me back.” Eric
drove defendant to the police station at 9 a.m. that day. An officer in the parking lot indicated
that the registration unit was closed that day. Defendant tried the police station door, but it was
locked. Eric testified that he again drove defendant to the CRU on December 29, 2014, a
Monday. Eric testified that an officer inside the station asked defendant for identification.
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Defendant showed the officer his prison discharge papers and his IDOC identification, but the
officer replied that he could not use these. Eric testified that defendant was consequently unable
to register on December 29 and he was not able to sign the logbook. Eric testified that he took
defendant to obtain a state identification on January 2, 2015. Eric testified on cross-examination
that defendant did not return to the CRU between December 30, 2014, and January 5, 2015. As
far as Eric knew, defendant next went to the CRU to try to register on January 16, 2015, when
their sister took defendant.
¶ 10 The trial court found defendant not guilty on count I because the State failed to prove that
defendant ever established a residence at the South Lowe address. The trial court found
defendant guilty of count II for failing to register within three days of his release from prison.
730 ILCS 150/3(c)(4) (West 2012). The trial court found that defendant failed to report “for a
number of days” after he was discharged from prison until he tried to register, and then more
time passed before he was ultimately arrested.
¶ 11 The trial court sentenced defendant to 3 ½ years’ imprisonment. Defendant filed a timely
appeal.
¶ 12 II. ANALYSIS
¶ 13 A. Substantive Due Process
Defendant first argues on appeal that the current version of SORA and the Sex Offender
Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012))
(together, the SORA statutory scheme), are facially unconstitutional because they violate
substantive due process.
¶ 14 We review challenges to the constitutionality of a statute de novo. People v. Mosley, 2015
IL 115872, ¶ 22. We presume a statute is constitutional and a defendant must overcome this
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strong presumption by clearly establishing its invalidity. Id. We resolve any doubts about a
statute’s constitutionality in favor of its validity and we must affirm a statute in the face of a
constitutional challenge so long as it is “ ‘reasonably capable of such a determination.’ ” Jackson
v. City of Chicago, 2012 IL App (1st) 111044, ¶ 20 (quoting People v. One 1998 GMC, 2011 IL
110236, ¶ 20).
¶ 15 "Substantive due process bars the government from arbitrarily exercising its power
without the reasonable justification of serving a legitimate interest." People v. Pollard, 2016 IL
App (5th) 130514, ¶ 31 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). In determining
whether a statute violates due process, we must first " 'determine the nature of the right
purportedly infringed upon by the statute.' " Id. (quoting In re J.W., 204 Ill. 2d 50, 66 (2003)). If
a fundamental constitutional right is involved, we employ strict scrutiny analysis to determine if
the statute serves a compelling government interest and is narrowly tailored to serve that interest.
Id. ¶ 32 (citing People v. Cornelius, 213 Ill. 2d 178, 204 (2004)).
¶ 16 Defendant contends that the SORA statutory scheme impacts two fundamental rights and
thus is subject to strict scrutiny analysis: (1) his right to be free from bodily restraint based on
arbitrary government action in that he must register within three days of his release from prison,
anytime he is away from home for three days or more, or changes job, residences, phone
numbers, or email addresses, and he cannot enter or be within 500 feet of all parks and many
types of public buildings, and (2) his fundamental right to privacy in requiring the public
disclosure of private information. 2
2 We observe that SORA imposes registration requirements on convicted sexual offenders to register their address with and provide other information to law enforcement within three days of release from prison, when temporarily domiciled at a different address for a least three days, and at other intervals, and to pay $100 fee; failure to do so constitutes a felony. People v. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 11-14 (citing 730 ILCS 150/3(a), 150/6, 150/7, 150/10 (West 2012)). The Notification Law requires law enforcement to disclose “sex offenders’ names, addresses, dates of birth, places of -5- 1-17-0117
¶ 17 We observe that our supreme court has repeatedly held that the SORA statutory scheme
does not affect fundamental rights triggering strict scrutiny analysis. See In re J.W., 204 Ill. 2d
50, 66 (2003) (lifetime registration requirement for juveniles does not impact a fundamental
right); Cornelius, 213 Ill. 2d at 204 (no fundamental right or unconstitutional invasion of privacy
were implicated by the Internet dissemination provisions); People v. Malchow, 193 Ill. 2d 413,
425-26 (2000) (SORA statutory scheme does not violate right to privacy).
¶ 18 Defendant contends that these cases involved prior versions of the SORA statutory
scheme that were much more limited in scope and pre-date the pervasiveness of the Internet and
social media today. However, multiple recent decisions from Illinois courts have concluded that
the requirements and restrictions of the current SORA statutory scheme do not impact a
fundamental right. See People v. Rodriguez, 2019 IL App (1st) 151938-B, ¶ 30 (SORA does not
violate fundamental right to be free from punishment); People v. Avila-Briones, 2015 IL App
(1st) 132221, ¶¶ 73-76 (SORA statutory scheme does not impact fundamental rights or violate
right to privacy); People v. Lee, 2018 IL App (1st) 152522, ¶ 49 (lifetime registration
requirement and other restrictions do not implicate a fundamental right); People v. Parker, 2016
IL App (1st) 141597, ¶¶ 78-82 (SORA statutory scheme’s monitoring requirement and
restrictions do not violate a fundamental right); In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-66
(SORA statutory scheme does not implicate a fundamental right and juvenile’s right to privacy is
not violated by SORA’s requirements).
¶ 19 Accordingly, defendant’s arguments are foreclosed by these prior decisions. “[T]he
weight of authority shows that laws similar to the Statutory Scheme do not affect fundamental
employment, schools, email addresses, instant messaging identities, chat room identities, and ‘other Internet communications identities’ ” to various institutions, individuals, and entities, and maintain a website containing sex offender information available to the public. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 15-16 (citing 730 ILCS 152/120, 152/115(b) (West 2012)). -6- 1-17-0117
rights. Our supreme court has stated that SORA does not affect fundamental rights.” Avila-
Briones, 2015 IL App (1st) 132221, ¶ 74. As Illinois courts have repeatedly recognized when
examining constitutional challenges to the SORA statutory scheme, the category of "fundamental
rights" is a narrow one, and "[o]ur supreme court has held that sex offender registration
provisions do not affect fundamental rights.” Pollard, 2016 IL App (5th) 130514, ¶35. We agree
that these burdens and restrictions, while not insignificant, simply do not rise to the level of
infringement on a fundamental right.
¶ 20 Defendant also urges that the restrictions and obligations of the SORA statutory scheme
constitutes a perpetual limitation on his liberty, citing Weems v. U.S., 217 U.S. 349, 366 (1910),
in which the United States Supreme Court found that a 15-year sentence and lifetime limitation
on an individual’s freedom of movement constituted cruel and unusual punishment. However, as
we observed in Avila-Briones, reliance on Weems is inapposite as it “did not involve a
fundamental-rights analysis under the substantive due process clause. Instead, it involved an
eighth-amendment challenge to a criminal sentence.” Avila-Briones, 2015 IL App (1st) 132221,
¶ 79. Weems also “involved a system of punishment far more harsh and intrusive than
defendant's obligations as a sex offender” as the defendant in Weems was required to obtain the
authorities’ permission before moving. Id.
¶ 21 Defendant next asserts that even if a fundamental right is not at play, the SORA statutory
scheme violates substantive due process under rational basis review.
¶ 22 “The rational basis test is satisfied where the challenged statute bears a rational
relationship to the purpose the legislature intended to achieve in enacting the statute.” Cornelius,
213 Ill. 2d at 203-04.
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¶ 23 While defendant acknowledges that the State has a legitimate interest in protecting the
public, particularly children, from sex offenders, defendant asserts that the SORA statutory
scheme is not rationally related to this purpose. Defendant cites a December 2017 report by a
Sex Offender Registration Task Force of the General Assembly stating that research has not
established that a sex offender registry reduces the sexual crime rate or reduces sexual
recidivism, and that the current SORA statutory scheme prevents all sex offenders from re-
entering society, regardless of whether they are high risk offenders. Defendant further argues that
alternate means are available for achieving the State’s purpose, that is, implementing a risk
assessment and a mechanism for removal from the registry.
¶ 24 We observe that our courts have repeatedly held that SORA’s provisions do not violate
substantive due process under rational basis review. See In re J.W., 204 Ill. 2d at 66-72
(registration requirement for juveniles does not violate substantive due process under rational
basis test); Cornelius, 213 Ill. 2d at 204 (Internet dissemination provisions are rationally related
to state purpose of protecting public from sex offenders and assisting law enforcement);
Rodriguez, 2018 IL App (1st) 151938-B, ¶¶ 30-35 (SORA is rationally related to legitimate
government interest of protecting public from sex offenders); Parker, 2016 IL App (1st) 141597,
¶¶ 78-82 (SORA statutory scheme does not violate due process) In re A.C., 2016 IL App (1st)
153047, ¶¶ 35-57 (application of registration and notification requirements to a juvenile offender
was rationally related to a legitimate state interest); Avila-Briones, 2015 IL App (1st) 132221,
¶ 81-86 (SORA statutory scheme is a rational means of protecting the public from sex offenders
and does not violate substantive due process under rational basis standard); In re J.R., 341 Ill.
App. 3d 784, 792-94 (2003) (SORA statutory scheme requirements applied to a juvenile do not
violate substantive due process under rational basis test).
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¶ 25 Despite defendant’s assertions that a legislative task force report has questioned the
efficacy of SORA and that other means are available to accomplish the State’s purposes, we
nevertheless conclude that it is rationally related to a legitimate government purpose. “[I]t is well
settled that the rational basis test does not require that the statute be the best means of
accomplishing the legislature's objectives. [Citation.] As long as the legislation has a rational
relationship to the government objectives, it is valid even if it is to some extent overinclusive,
underinclusive, or both.” (Internal quotation marks omitted) Pollard, 2016 IL App (5th) 130514,
¶ 42 (finding that, although SORA may be over-inclusive, it was still rationally related to
protection of the public from sex offenders).
¶ 26 In Parker, for example, the defendant similarly cited “studies showing that most sex
offenders do not recidivate.” Parker, 2016 IL App (1st) 141597, ¶ 79. However, the Parker court
observed that “[w]hile not every offender is necessarily inclined to commit another sex offense,
subjecting that group as a whole to certain restrictions does serve a legitimate state purpose
which the SORA Statutory Scheme is rationally related to achieving, even though it may not be
‘finely-tuned’ to do so.” Id. (quoting Avila-Briones, 2015 IL App (1st) 132221, ¶ 84).
¶ 27 Similarly, In re A.C., 2016 IL App (1st) 153047, ¶¶ 50-52, this court rejected the
defendant’s rational basis challenge based on a report finding that the SORA statutory scheme
did not bear a rational relationship to its purpose because it was over-inclusive and
counterproductive to rehabilitation of juveniles. The court held that it was bound by Illinois
precedent finding the SORA statutory scheme constitutional and reasoned that “policy arguments
more properly belong to the province of the legislature.” Id. ¶ 52.
¶ 28 Along the same lines, the court in Avila-Briones observed that “[a]though we recognize
that the Statutory Scheme at issue may be over-inclusive—that is, it may impose burdens on
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individuals who pose no threat to the public because they will not reoffend—it still has a rational
relationship to protecting the public.” Avila-Briones, 2015 IL App (1st) 132221, ¶ 84. The Avila-
Briones court noted that our supreme court has held that the SORA statutory scheme “help[s]
law enforcement and private individuals keep track of sex offenders by providing information
about their presence and offenses” and keep sex offenders away from areas or out of professions
where children or other vulnerable people are present. Id. “Whether or not the Statutory Scheme
is a finely-tuned response to the threat of sex-offender recidivism is not a question for rational-
basis review; that is a question for the legislature.” Id. See also Rodriguez, 2019 IL App (1st)
151938-B, ¶¶ 32-33 (“despite being in certain ways under- or overinclusive, the SORA statutory
scheme is rationally related to protecting the public from sex offenders, which is a legitimate
state interest” and the SORA statutory scheme enabled law enforcement to monitor the
whereabouts of sex offenders which “rationally limited the opportunities sex offenders have to
reoffend.”).
¶ 29 B. Procedural Due Process
¶ 30 Defendant next contends that the SORA statutory scheme violates his procedural due
process guarantees because there is no opportunity afforded for individualized assessment prior
to subjecting him to a lifetime of registration requirements, nor is there a mechanism to petition
for removal from the registry.
¶ 31 "The procedural due process clause entitles individuals to certain procedures before the
State may deprive them of a life, liberty, or property interest." Avila-Briones, 2015 IL App (1st)
132221, ¶ 88. In determining how much process is required, courts consider three factors: "(1)
the private interest that will be affected by the government action; (2) the risk of an erroneous
deprivation of that private interest through the procedures used and the probable value of
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additional procedural safeguards; and (3) the government's interest, including the function
involved and the fiscal and administrative burdens that additional procedures would entail." Id.
(citing People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009)).
¶ 32 Defendant contends that all three factors favor additional procedures. He contends that
the private interests at stake are the freedom from intrusive monitoring and surveillance, his right
to privacy, and the right to notice and an opportunity to be heard where his reputation is at stake.
Defendant contends that there is a risk of erroneous deprivation of these interests as evidenced
by the fact that he is in poor health and confined to a wheelchair and his only recent criminal
activity has resulted from his difficulties in registering. He asserts that additional procedural
safeguards would ensure state resources are not wasted and the additional costs would be
minimal if the length of registration is determined by the trial court at the time of sentencing.
¶ 33 In Avila-Briones, 2015 IL App (1st) 132221, ¶ 90, this court rejected a similar procedural
due process challenge. The defendant asserted that the SORA statutory scheme lacked a
mechanism to ensure only those offenders who actually pose a risk of recidivism are subjected to
its restrictions. Id. The Avila-Briones court concluded that no additional procedures are needed to
comport with due process as application of SORA was based on the convicted offense, for which
the offender received “a procedurally safeguarded opportunity to contest”; thus, a defendant’s
likelihood of recidivism is irrelevant in determining whether he committed the charged offense.
(Internal quotation marks omitted.) Id. ¶¶ 88-92 (citing Connecticut Department of Public Safety
v. Doe, 538 U.S. 1, 4, 7-8 (2003)).
¶ 34 This court has reaffirmed this holding in subsequent cases. In Parker, 2016 IL App (1st)
141597, ¶ 82, the court again rejected a procedural due process challenge, holding that “once it
has been determined that the SORA Statutory Scheme is not unconstitutional, there is no
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constitutional mandate for procedures that would allow a convicted defendant to demonstrate
that he or she is not likely to reoffend.” Similarly, the court in In re A.C., 2016 IL App (1st)
153047, ¶¶ 59-66, observed that Illinois precedent holds that SORA’s restrictions and
requirements “do not implicate protected liberty or property interests," and the court found that
imposing registration requirements without an individualized determination of risk did not
violate the juvenile offender's procedural due process rights. See also Konetski, 233 Ill. 2d at
200-06 (SORA registration obligations did not violate juvenile offender’s procedural due process
rights and additional procedural safeguard of a trial was not required); In re J.R., 341 Ill. App. 3d
at 795-800 (finding that juvenile's procedural due process rights were not violated by imposing
registration requirement without initial individualized determination of current dangerousness as
registration requirement was triggered upon adjudication for a specified offense and current
dangerousness was not relevant to registration obligation); Pollard, 2016 IL App (5th) 130514,
¶¶ 46-48 (no procedural due process violation where defendant enjoyed several procedural
safeguards associated with his criminal proceedings and the registration obligations were "not
sufficiently burdensome to mandate the additional procedural protection of a mechanism to
determine his risk of recidivism.")
¶ 35 Additionally, as the State contends, whether the value of additional procedures would
better serve the State’s interest in public safety is a matter best left for the legislature. “ ‘[T]he
judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative
policy determinations made in areas that neither affect fundamental rights nor proceed along
suspect lines.’ ” In re A.C., 2016 IL App (1st) 153047, ¶ 66 (quoting In re M.A., 2015 IL 118049,
¶ 70). “ ‘A statute is not invalid under the Constitution because it might have gone farther than it
did.’ ” Id. (quoting In re M.A., 2015 IL 118049, ¶ 70).
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¶ 36 Accordingly, we find that defendant has failed to show that any additional process is
constitutionally mandated or that the SORA statutory scheme violates procedural due process
rights.
¶ 37 III. CONCLUSION
¶ 38 For the reasons set forth above, we affirm the judgment of the court.
¶ 39 Affirmed.
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