People v. Hall

2021 IL App (4th) 190001-U

• Court: Appellate Court of Illinois
• Decided: April 2, 2021
• Docket: 4-19-0001
• Status: Unpublished

Opinion

2021 IL App (4th) 190001-U NOTICE This Order was filed under FILED April 2, 2021 Supreme Court Rule 23 and is NOS. 4-19-0001, 4-19-0002 cons. not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County MICHAEL HALL, ) Nos. 15CF384 Defendant-Appellant. ) 17CF672 ) ) Honorable ) Scott D. Drazewski, ) Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, concluding defendant failed to establish section 3(c)(2.1) of the Illinois Sex Offender Registration Act violated the constitutional prohibitions against ex post facto laws.

¶2 Defendant, Michael Hall, appeals from the circuit court’s judgment dismissing his

petition for relief pursuant to section 2-1401 of the Code of Civil Procedure (Civil Code) (735

ILCS 5/2-1401 (West 2018)) from the criminal judgments entered against him in McLean County

case Nos. 15-CF-384 and 17-CF-672. On appeal, defendant argues we should reverse the circuit

court’s judgment dismissing his section 2-1401 petition and vacate the underlying criminal

judgments because the underlying judgments are void in that they are based upon a violation of a

re-registration provision set forth in section 3(c)(2.1) of the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/3(c)(2.1) (2018)) which violates the constitutional prohibitions against

ex post facto laws. We affirm.

¶3 I. BACKGROUND

¶4 The following background is gathered from the facts alleged in defendant’s section

2-1401 petition, which we accept as true for the purposes of this appeal, as well as the records

provided in McLean County case Nos. 15-CF-384 and 17-CF-672.

¶5 In 1994, defendant pleaded guilty to attempted criminal sexual assault and was

sentenced to a term of probation. Defendant’s probation was later revoked, and he was resentenced

to four years’ imprisonment. Upon his release from prison, defendant was notified of his need to

register under SORA for a 10-year period. Defendant’s obligation to register ended in 2008.

¶6 In 2012, defendant pleaded guilty to a felony drug offense and was sentenced to

five years’ imprisonment. Upon his release from prison, defendant was notified of his need to

re-register under SORA due to a new law.

¶7 In 2015, defendant, pursuant to a negotiated agreement, pleaded guilty in case No.

15-CF-384 to violating section 3(a) of SORA (730 ILCS 150/3(a) (West 2014)). He was sentenced

to 24 months’ probation.

¶8 In 2017, defendant, pursuant to a negotiated agreement, pleaded guilty in case No.

17-CF-672 to violating section 3(a) of SORA (730 ILCS 150/3(a) (West 2016)) and admitted in

case No. 15-CF-384 to violating his probation. He was sentenced to two concurrently imposed

terms of four years’ imprisonment.

¶9 In 2018, defendant filed his section 2-1401 petition for relief from the judgments

entered against him in case Nos. 15-CF-384 and 17-CF-672, arguing the judgments were void in

-2- that the law requiring him to re-register violated both federal and state ex post facto clauses. The

State filed a motion to dismiss defendant’s petition, which the circuit court granted after a

nonevidentiary hearing.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 On appeal, defendant argues we should reverse the circuit court’s judgment

dismissing his section 2-1401 petition and vacate the judgments entered against him in case Nos.

15-CF-384 and 17-CF-672 because the underlying criminal judgments are void in that they are

based upon a violation of a re-registration provision set forth in section 3(c)(2.1) of SORA (730

ILCS 150/3(c)(2.1) (2018)) which violates the constitutional prohibitions against ex post facto

laws. The State disagrees.

¶ 13 In his appellate brief, defendant, to his credit, addresses the manner in which he

challenges the re-registration provision—a section 2-1401 petition after he twice violated the terms

of his re-registration. First, defendant, citing People v. Thompson, 2015 IL 118151, ¶¶ 31-32, 43

N.E.3d 984, suggests his challenge to the re-registration provision on the basis it violates the

constitutional prohibitions against ex post facto laws was properly brought pursuant to section

2-1401 as it presents an issue of whether the provision is facially unconstitutional and void

ab initio, which, if true, would make the underlying criminal judgments void. Second, defendant,

citing People v. Bingham, 2018 IL 122008, ¶ 21, 115 N.E.3d 166, suggests his challenge to the

re-registration provision pursuant to section 2-1401 was properly brought after he twice violated

the terms of his re-registration. The State, to its discredit, fails to address the manner in which

defendant challenges the re-registration provision.

-3- ¶ 14 On the merits, defendant, after recognizing a law must be both retroactive and

disadvantageous to a defendant to violate the constitutional prohibitions against ex post facto laws,

simply refers to the re-registration provision as retroactive and then presents a lengthy argument,

using the Mendoza-Martinez factors (Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)) and

case law, why SORA, as a whole, has become punitive and therefore disadvantageous to a

defendant. The State, in response, argues the registration requirements imposed by SORA are not

a form of punishment and thus defendant’s argument is meritless.

¶ 15 Even assuming, arguendo, defendant’s challenge to the re-registration provision

was properly brought pursuant to section 2-1401 after he twice violated the terms of his

re-registration and SORA has become punitive over the years with its various amendments,

defendant has not established the re-registration provision violates the constitutional prohibitions

against ex post facto laws. “A statute is presumed constitutional, and the party challenging the

statute bears the burden of demonstrating its invalidity.” People v. Malchow, 193 Ill. 2d 413, 418,

739 N.E.2d 433, 437 (2000). “A law is considered ex post facto if it is both retroactive and

disadvantageous to the defendant.” People v. Cornelius, 213 Ill. 2d 178, 207, 821 N.E.2d 288, 306

(2004). Defendant has not presented this court with any supporting authority or reasoned argument

for his assertion that the re-registration requirement is retroactive. See Ill. S. Ct. R. 341(h)(7) (May

25, 2018). In fact, we note the supreme court in Bingham, 2018 IL 122008, ¶ 21, a case cited by

defendant, cited a similar case, Johnson v. Madigan, 880 F.3d 371, 375-76 (7th Cir. 2018), in

which the United States Court of Appeals, Seventh Circuit, found SORA did not apply

retroactively for ex post facto purposes as applied to the defendant in that case. Absent any

supporting authority or reasoned argument for his assertion the re-registration requirement is

-4- retroactive, we find defendant has not established the re-registration provision set forth in section

3(c)(2.1) of SORA (730 ILCS 150/3(c)(2.1) (2018)) violates the constitutional prohibitions against

ex post facto laws.

¶ 16 III. CONCLUSION

¶ 17 We affirm the circuit court’s judgment.

¶ 18 Affirmed.

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