2021 IL App (1st) 192440-U No. 1-19-2440 Order filed March 31, 2021 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) Nos. 06 CR 9540 ) 06 CR 9601 ) ARTURO LUNA, ) Honorable ) Diana L. Kenworthy, Defendant-Appellant. ) Judge, presiding.
JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s summary dismissal of defendant’s postconviction petition for lack of standing is affirmed.
¶2 Defendant Arturo Luna appeals from an order of the circuit court of Cook County
summarily dismissing his postconviction petition for lack of standing. On appeal, defendant
contends the court erred when it dismissed his petition because it ignored his proportionate penalty
argument. We affirm. No. 1-19-2440
¶3 Pursuant to a fully negotiated guilty plea, on January 5, 2007, defendant was convicted of
aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006))1 in two separate cases. Each
case involved a separate victim. The factual basis in each case provided that defendant, a custodian
at Niles North High School, engaged in an act of sexual intercourse with a female student who was
at least 13 years old but under the age of 17, and defendant was at least five years older than his
victim. The trial court sentenced defendant to concurrent terms of 30 months’ probation. As a
collateral consequence of his conviction, defendant was required to register as a sex offender in
accordance with the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2006)).
Defendant did not move to vacate his guilty plea or attempt to perfect an appeal from that
judgment.
¶4 On June 17, 2009, defendant’s probation was satisfactorily terminated in both cases.
¶5 On September 19, 2019, defendant, through private counsel, filed a petition for relief under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) challenging his
sex offender registration requirement. Defendant alleged that when he was sentenced, he was
required to register as a sex offender only for 10 years from his conviction or release date. In 2017,
defendant was informed that he was required to register as a sex offender for life. Defendant
alleged that the registration requirement as applied to him was unconstitutional because its
restrictions constituted punishment that was grossly disproportionate to the severity of the offense
in violation of the eighth amendment of the United States Constitution and the proportionate
penalties clause of the Illinois Constitution.
1 Now codified at 720 ILCS 5/11-1.60(d) (eff. July 1, 2011).
-2- No. 1-19-2440
¶6 The circuit court noted that defendant’s probation was terminated more than 10 years
before he filed his petition. Consequently, the circuit court found that defendant was precluded
from filing a postconviction petition under the Act because he was neither imprisoned nor on
probation at the time he filed his petition. In addition, the circuit court pointed out that it had been
previously held that lifetime registration as a sex offender was not a sufficient constraint on a
person’s liberty to bring them within the purview of the Act. The circuit court concluded that
defendant lacked standing to file a postconviction petition under the Act and summarily dismissed
his petition.
¶7 On appeal, defendant contends the circuit court erred when it dismissed his petition because
it ignored his proportionate penalty argument. Defendant argues that his lifetime registration
requirement, which was imposed ex post facto, violates the eighth amendment’s prohibition of
cruel and unusual punishment under the United States Constitution and the proportionate penalties
clause of the Illinois Constitution. Defendant acknowledges that the Illinois Supreme Court held
that the sex offender registration requirement did not constitute punishment. See People v.
Malchow, 193 Ill. 2d 413 (2000); People v. Adams, 144 Ill. 2d 381, 387-89 (1991). He argues,
however, that the sex offender statutes have been amended over the years to strip freedom of
movement, which is a concept of punishment, and thus, the statutes are now akin to probation or
supervised release. Defendant asserts that his lifetime registration constitutes punishment
sufficient to satisfy the filing requirements of the Act.
¶8 The State responds that the circuit court’s summary dismissal of defendant’s petition was
proper because he lacked standing to file a postconviction petition under the Act. The State points
out that defendant’s probation was terminated more than 10 years before he filed his petition, and
-3- No. 1-19-2440
therefore, he is not a “person imprisoned in the penitentiary” as required for standing under the
Act. The State notes that our supreme court has held that sex offender registration does not
constitute punishment, and this court has repeatedly found that the sex offender registration
requirement does not confer standing to seek relief under the Act.
¶9 We review the circuit court’s summary dismissal of defendant’s postconviction petition de
novo. People v. Knapp, 2020 IL 124992, ¶ 39. The Act provides a process whereby a person
serving a criminal sentence can file a petition asserting that his conviction was the result of a
substantial denial of his rights under the United States Constitution, the Illinois Constitution, or
both. 725 ILCS 5/122-1(a) (West 2016); People v. Hodges, 234 Ill. 2d 1, 9 (2009). Specifically,
section 122-1(a) of the Act states that “[a]ny person imprisoned in the penitentiary may institute a
proceeding under this Article ***.” 725 ILCS 122-1(a) (West 2016). Only those persons whose
liberty is actually restrained are entitled to file a petition for relief under the Act. People v. Carrera,
239 Ill. 2d 241, 245-46 (2010). This includes defendants who are serving a sentence of probation
and those who have been released from prison and are serving a term of mandatory supervised
release. Id. at 246. However, a defendant who has fully served his sentence prior to filing his
postconviction petition is not under a constraint on his liberty, and thus, is not a “person imprisoned
in the penitentiary” as required to file a petition under the Act. Id. at 253. Consequently, a person
who is no longer imprisoned because he completed serving his term of probation has no standing
to file a petition for postconviction relief. Id.
¶ 10 Our supreme court has repeatedly stated that “sex offender registration is not punishment.”
People v. Cardona, 2013 IL 114076, ¶ 24. Accordingly, this court has held that a person who is
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2021 IL App (1st) 192440-U No. 1-19-2440 Order filed March 31, 2021 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) Nos. 06 CR 9540 ) 06 CR 9601 ) ARTURO LUNA, ) Honorable ) Diana L. Kenworthy, Defendant-Appellant. ) Judge, presiding.
JUSTICE REYES delivered the judgment of the court. Presiding Justice Gordon and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: The circuit court’s summary dismissal of defendant’s postconviction petition for lack of standing is affirmed.
¶2 Defendant Arturo Luna appeals from an order of the circuit court of Cook County
summarily dismissing his postconviction petition for lack of standing. On appeal, defendant
contends the court erred when it dismissed his petition because it ignored his proportionate penalty
argument. We affirm. No. 1-19-2440
¶3 Pursuant to a fully negotiated guilty plea, on January 5, 2007, defendant was convicted of
aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2006))1 in two separate cases. Each
case involved a separate victim. The factual basis in each case provided that defendant, a custodian
at Niles North High School, engaged in an act of sexual intercourse with a female student who was
at least 13 years old but under the age of 17, and defendant was at least five years older than his
victim. The trial court sentenced defendant to concurrent terms of 30 months’ probation. As a
collateral consequence of his conviction, defendant was required to register as a sex offender in
accordance with the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2006)).
Defendant did not move to vacate his guilty plea or attempt to perfect an appeal from that
judgment.
¶4 On June 17, 2009, defendant’s probation was satisfactorily terminated in both cases.
¶5 On September 19, 2019, defendant, through private counsel, filed a petition for relief under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) challenging his
sex offender registration requirement. Defendant alleged that when he was sentenced, he was
required to register as a sex offender only for 10 years from his conviction or release date. In 2017,
defendant was informed that he was required to register as a sex offender for life. Defendant
alleged that the registration requirement as applied to him was unconstitutional because its
restrictions constituted punishment that was grossly disproportionate to the severity of the offense
in violation of the eighth amendment of the United States Constitution and the proportionate
penalties clause of the Illinois Constitution.
1 Now codified at 720 ILCS 5/11-1.60(d) (eff. July 1, 2011).
-2- No. 1-19-2440
¶6 The circuit court noted that defendant’s probation was terminated more than 10 years
before he filed his petition. Consequently, the circuit court found that defendant was precluded
from filing a postconviction petition under the Act because he was neither imprisoned nor on
probation at the time he filed his petition. In addition, the circuit court pointed out that it had been
previously held that lifetime registration as a sex offender was not a sufficient constraint on a
person’s liberty to bring them within the purview of the Act. The circuit court concluded that
defendant lacked standing to file a postconviction petition under the Act and summarily dismissed
his petition.
¶7 On appeal, defendant contends the circuit court erred when it dismissed his petition because
it ignored his proportionate penalty argument. Defendant argues that his lifetime registration
requirement, which was imposed ex post facto, violates the eighth amendment’s prohibition of
cruel and unusual punishment under the United States Constitution and the proportionate penalties
clause of the Illinois Constitution. Defendant acknowledges that the Illinois Supreme Court held
that the sex offender registration requirement did not constitute punishment. See People v.
Malchow, 193 Ill. 2d 413 (2000); People v. Adams, 144 Ill. 2d 381, 387-89 (1991). He argues,
however, that the sex offender statutes have been amended over the years to strip freedom of
movement, which is a concept of punishment, and thus, the statutes are now akin to probation or
supervised release. Defendant asserts that his lifetime registration constitutes punishment
sufficient to satisfy the filing requirements of the Act.
¶8 The State responds that the circuit court’s summary dismissal of defendant’s petition was
proper because he lacked standing to file a postconviction petition under the Act. The State points
out that defendant’s probation was terminated more than 10 years before he filed his petition, and
-3- No. 1-19-2440
therefore, he is not a “person imprisoned in the penitentiary” as required for standing under the
Act. The State notes that our supreme court has held that sex offender registration does not
constitute punishment, and this court has repeatedly found that the sex offender registration
requirement does not confer standing to seek relief under the Act.
¶9 We review the circuit court’s summary dismissal of defendant’s postconviction petition de
novo. People v. Knapp, 2020 IL 124992, ¶ 39. The Act provides a process whereby a person
serving a criminal sentence can file a petition asserting that his conviction was the result of a
substantial denial of his rights under the United States Constitution, the Illinois Constitution, or
both. 725 ILCS 5/122-1(a) (West 2016); People v. Hodges, 234 Ill. 2d 1, 9 (2009). Specifically,
section 122-1(a) of the Act states that “[a]ny person imprisoned in the penitentiary may institute a
proceeding under this Article ***.” 725 ILCS 122-1(a) (West 2016). Only those persons whose
liberty is actually restrained are entitled to file a petition for relief under the Act. People v. Carrera,
239 Ill. 2d 241, 245-46 (2010). This includes defendants who are serving a sentence of probation
and those who have been released from prison and are serving a term of mandatory supervised
release. Id. at 246. However, a defendant who has fully served his sentence prior to filing his
postconviction petition is not under a constraint on his liberty, and thus, is not a “person imprisoned
in the penitentiary” as required to file a petition under the Act. Id. at 253. Consequently, a person
who is no longer imprisoned because he completed serving his term of probation has no standing
to file a petition for postconviction relief. Id.
¶ 10 Our supreme court has repeatedly stated that “sex offender registration is not punishment.”
People v. Cardona, 2013 IL 114076, ¶ 24. Accordingly, this court has held that a person who is
subject to sex offender registration is not “imprisoned” under the Act, and therefore lacks standing
-4- No. 1-19-2440
to file a postconviction petition. People v. Begay, 2018 IL App (1st) 150446, ¶ 61. See also People
v. Stavenger, 2015 IL App (2d) 140885, ¶ 12 (rejecting defendant’s contention that registration as
a sex offender grants him standing under the Act); People v. Downin, 394 Ill. App. 3d 141, 146
(2009) (holding that “lifetime registration as a sex offender is not a constraint on liberty sufficient
to bring it within the Act”).
¶ 11 Here, defendant completed serving his sentence on June 17, 2009, when his probation was
satisfactorily terminated. Moreover, his registration as a sex offender does not constitute
punishment. In accordance with our prior holdings, we find that defendant is not a “person
imprisoned in the penitentiary” as required to seek relief under the Act. Defendant therefore lacked
standing to file a postconviction petition, and the circuit court’s summary dismissal on that basis
was proper.
¶ 12 For these reasons, we affirm the judgment of the circuit court of Cook County summarily
dismissing defendant’s postconviction petition for lack of standing.
¶ 13 Affirmed.
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