People v. Parker

2016 IL App (1st) 141597

• Court: Appellate Court of Illinois
• Decided: December 30, 2016
• Docket: 1-14-1597
• Status: Unpublished

Opinion

2016 IL App (1st) 141597

FIRST DIVISION December 29, 2016

No. 1-14-1597

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 21296 ) JORDON PARKER, ) Honorable ) Noreen Valeria Love, Defendant-Appellant. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court, with opinion. Justice Harris and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Jordan Parker was convicted of two counts of criminal

sexual assault and sentenced to a total of eight years in prison. The State’s case against Mr.

Parker rested on the testimony of the complainant, A.T., who testified that, on the evening of

July 23, 2009, she was 18 years old and had been in a dating relationship with Mr. Parker, who

was then 19 years old. They had dated for just under two months when she met him at a park

near her home. A.T. testified that, while the two were in the backseat of Mr. Parker’s vehicle,

despite her protestations, Mr. Parker proceeded to remove her clothing and force her to submit to

oral and anal sexual contact before finally giving her clothing back and allowing her to leave the

vehicle. No. 14-1597

¶2 Mr. Parker raises four issues on appeal. He argues that his convictions should be reversed

both because no rational trier of fact could have accepted A.T.’s uncorroborated and improbable

account of events to find him guilty beyond a reasonable doubt and because he did not

knowingly and intelligently waive his right to a jury trial. Mr. Parker additionally argues that, as

applied to him, the Sex Offender Registration Act (see 730 ILCS 150/1 et seq. (West 2012)) and

related statutes are punitive in effect and violate both the eighth amendment’s prohibition on

cruel and unusual punishment and the proportionate penalties clause of the Illinois Constitution.

Finally, Mr. Parker argues that the Sex Offender Registration Act is facially unconstitutional

because it violates registrants’ substantive and procedural due process rights. For the reasons that

follow, we affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 Jordon Parker was charged with multiple counts each of criminal sexual assault (720

ILCS 5/12-13(a)(1) (West 2008)) and criminal sexual abuse (720 ILCS 5/12-15(a)(1) (West

2008)) based on the State’s allegations that on July 23, 2009, Mr. Parker forcibly penetrated or

made sexual contact with the vagina and anus of A.T., the complainant.

¶5 Mr. Parker’s defense attorney requested a bench trial and one was held on September 27,

2013. Before trial, the court stated: “I need the charging document. *** Now, I need a Jury

waiver, if that has not been previously done.” The following exchange then took place:

“THE COURT: *** Sir, I have here what is known as a

Jury waiver. Is that your signature?

THE DEFENDANT: Yes, ma’am.

THE COURT: By signing that you give up the right to have

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a trial by Jury. Do you know what a Jury trial is?

THE DEFENDANT: Yes.”

¶6 At trial, A.T. testified that, when she met Mr. Parker in May 2009, she was 18 years old,

had recently graduated from Oak Park River Forest High School, and lived with her parents.

A.T. stated that she met Mr. Parker on May 30, 2009, when she stopped at a gas station where he

was selling CDs. She purchased a CD from Mr. Parker, who asked if A.T. was single and

included his phone number on the face of the CD. The next day, A.T. called Mr. Parker. A.T. and

Mr. Parker began dating and A.T. stated that between June and July 2009 they called and sent

text messages to each other and met on three occasions.

¶7 A.T. further testified that, on July 23, 2009, she and Mr. Parker made plans to meet in the

parking lot of Oak Park River Forest High School. A.T. rode her bicycle to the high school and

Mr. Parker arrived in his white Ford Explorer. A.T. got into Mr. Parker’s vehicle and they talked

for approximately 45 minutes. At around 5:30 p.m., A.T. and Mr. Parker left the parking lot to go

to a park near Fenwick High School, which was close to A.T.’s house; A.T. road her bicycle and

Mr. Parker drove his vehicle. Once they reached the park, A.T. parked her bicycle next to Mr.

Parker’s Ford Explorer and they both entered the backseat of the vehicle.

¶8 According to A.T., the two talked for a few minutes and then began kissing. Mr. Parker

then attempted to remove A.T.’s clothing and A.T. told him no. She testified that the two went

“back and forth,” with A.T. trying to keep her clothing on and Mr. Parker trying to remove it,

until he succeeded in removing her shorts. When asked to describe their exchange, A.T. stated:

“I said stop. No. I don’t want to. He said let me do it.” A.T. testified that she continued to resist

Mr. Parker’s efforts but after five or ten minutes he succeeded in removing her clothing and

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underwear.

¶9 A.T. testified that, at this point, Mr. Parker asked if she would have oral sex with him and

she said no. For another five minutes A.T. stated Mr. Parker kept trying to convince her and she

kept saying no, until finally he forced her to allow him to perform oral sex on her. When asked

specifically what Mr. Parker did to force her, A.T. stated “I was still on the back seat sitting in

the back seat of the car, and he was on the floor. And he forced me to let him perform it on me.”

A.T. testified that she then started crying and asked Mr. Parker to stop but that he continued for a

few minutes and stopped only “when he felt like it.” Mr. Parker then asked A.T. why she was

crying, and A.T. responded that she was uncomfortable, he was making her do things she did not

want to do, and she was scared.

¶ 10 A.T. stated that Mr. Parker then asked her to perform oral sex on him and A.T. said no.

He then laid A.T. horizontally across the backseat of the vehicle and she screamed. A.T. stated

that Mr. Parker reacted with surprise, asking her if she thought he planned to rape her, and A.T.

responded “yes.” Mr. Parker allowed A.T. to sit back up but continued to ask her to have sex

with him for about five or ten minutes while she cried and told him no.

¶ 11 A.T. testified that she then decided to lie to Mr. Parker, telling him that she was raped by

a family member when she was a child, because she thought he might stop pressuring her for

sex. Mr. Parker said “ok” but, less than five minutes later, pulled A.T. onto his lap. A.T. testified

that she attempted to cover herself with a towel and felt pain in her behind. She told Mr. Parker

to stop, and he responded by telling her that he was wearing protection. A.T. looked down and

saw that Mr. Parker’s penis was inside her anus. She did not see a condom. A.T. testified that she

tried to get off of Mr. Parker and that she hit him on the side of his head, causing him to say

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“don’t do that.” A.T. further testified that she was scared and she did not want to make Mr.

Parker angry because she “thought he might do something else.”

¶ 12 A.T. testified that she was crying after she got off of Mr. Parker’s lap and Mr. Parker told

her “it’s fine and it’s okay. Stop crying.” A.T. told Mr. Parker that it was late and she wanted to

go home but he would not give her back her clothing and the doors of the vehicle were locked.

A.T. recalled that she was unable to find her underwear and Mr. Parker told her that they were

“lost or [he was] going to keep them or something.” According to A.T., while she put on the rest

of her clothes Mr. Parker took pictures of her on his phone. When A.T. got out of the car, Mr.

Parker attempted to give her a hug, but she refused.

¶ 13 A.T. testified that it was then approximately 8:15 p.m. She rode her bike home, went to

her room, and sent a text message to her friend about the encounter. At around 8:45 p.m., Mr.

Parker called her to see if she had made it home safely. A.T. testified that she saw Mr. Parker’s

phone number on her caller ID but answered the phone anyway because she “wanted to know

what he was going to say.” Later that evening, A.T. placed her clothes in a plastic bag and put

them in her closet. She considered telling the police and her parents but did not because she felt

scared. A.T. testified that she spoke to Mr. Parker again “a couple of days after or the next

couple of weeks” and they “talked a little bit,” at which point A.T. ended the relationship.

¶ 14 After approximately one month, A.T. told her parents what happened because she did not

want Mr. Parker “to get away with it.” The police came to A.T.’s house and she gave them the

CD she purchased from Mr. Parker and the plastic bag containing her clothes.

¶ 15 On cross-examination, A.T acknowledged that on the evening in question Mr. Parker

never told her that she could not leave his vehicle, that one of the car windows was open but she

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did not call for help, and that Mr. Parker did not rip or tear her clothing. A.T. testified, however,

that she kicked at Mr. Parker and scratched him on his arms. She stated that they were both

pulling on her clothing and he simply pulled harder. A.T. also agreed that she received a text

message from her parents telling her to come home at about the time she retrieved her clothing

and headed home.

¶ 16 Officer Troy Fields testified that he responded to A.T.’s report of sexual assault and

received the bag of clothes on August 24, 2009.

¶ 17 Jamie Jett, a forensic scientist at the Illinois State Police crime lab, found no hairs, fibers,

or debris on the clothing and no traces of semen on either the clothing or in Mr. Parker’s vehicle.

¶ 18 Officer Seth DeYoung testified that on August 26, 2009, he interviewed A.T. in the

presence of her mother at the River Forest police station. According to Officer DeYoung, A.T.

did not tell him that she kicked or scratched Mr. Parker but did tell him that she struck Mr.

Parker in the head when he put his penis in her anus. A.T. did not tell Officer DeYoung that the

doors of Mr. Parker’s vehicle were locked or that he told her she could not exit the vehicle.

Officer DeYoung testified that he arrested Mr. Parker on September 1, 2009, and searched his

Ford Explorer, finding no forensic evidence. Officer DeYoung stated that he found a photograph

of A.T. on Mr. Parker’s cell phone; the parties stipulated, however, that no photographs of A.T.

were exchanged during discovery.

¶ 19 At the conclusion of the bench trial, the circuit court found Mr. Parker guilty of three

counts of criminal sexual assault and three counts of criminal sexual abuse. This included all

charges that alleged contact between Mr. Parker’s mouth and A.T.’s vagina and contact between

Mr. Parker’s penis and A.T.’s anus. The court merged all six counts into two convictions for

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criminal sexual assault and sentenced Mr. Parker to the minimum four years for each count, for a

total of eight years in prison.

¶ 20 In reaching its decision, the circuit court found A.T.’s testimony to be credible:

“I believe her testimony. I believe she was credible on the stand. She

certainly was in tears here when she recalled some of the events that took place.

She spoke to police officers; and as she, again, recounted those events, she was in

tears concerning what had occurred. And I do believe that that was sufficient.”

¶ 21 The court also noted that there was no evidence establishing a motive for A.T. to be

untruthful about what took place between her and Mr. Parker:

“And I have to ask myself what would be the point in her a month later coming

back and saying that he forced her to participate in sexual conduct if it was a

consensual act? What would be her motive a month later to say no, he actually

forced me to do this? I don’t understand. I mean, if it was a situation where there

was testimony that he somehow broke it off and she’s a woman scorned, I might

understand that.”

¶ 22 Finally, the circuit court concluded that A.T.’s testimony was consistent both with the

fact that she saved her clothing from the night in question in a plastic bag and with Officer

DeYoung’s testimony that a photograph of A.T. was later found on Mr. Parker’s cell phone,

although the photograph itself was not collected or presented at trial.

¶ 23 JURISDICTION

¶ 24 Mr. Parker was sentenced by the circuit court on May 30, 2014, and timely filed his

notice of appeal on June 2, 2014. Accordingly, this court has jurisdiction pursuant to article VI,

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section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court

Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case.

(Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013)).

¶ 25 ANALYSIS

¶ 26 On appeal, Mr. Parker presents two arguments in support of reversal of his convictions

for criminal sexual assault—insufficiency of the evidence and an invalid jury waiver—and

makes both an as applied and a facial constitutional challenge to the Sex Offender Registration

Act and related statutes, which he is subject to as a collateral consequence of his convictions. We

address each argument in turn.

¶ 27 I. Sufficiency of the Evidence

¶ 28 Mr. Parker first argues that the evidence presented at his trial was insufficient to support a

finding of his guilt because it consisted solely of A.T.’s testimony, which he contends no rational

trier of fact could have believed considering the absence of any corroborating physical evidence,

inconsistencies with her prior statements, and the implausibility of her account. The State

counters that reversal is not warranted where the circuit court expressly found A.T. to be a

credible witness whose testimony was consistent with the testimony of police officers.

¶ 29 When, as here, a criminal defendant challenges the sufficiency of the evidence that

resulted in his conviction, our function is not to retry the defendant. People v. Collins, 106 Ill. 2d

237, 261 (1985). Rather, “after viewing the evidence in the light most favorable to the

prosecution,” we must determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Id. We will

not overturn a criminal conviction on review “unless the evidence is so improbable or

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unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” People v. Schott, 145

Ill. 2d 188, 203 (1991). We afford great deference to the circuit court’s assessment of a witness’s

credibility because “the circuit court is in a superior position to determine and weigh the

credibility of the witnesses, observe the witnesses’ demeanor, and resolve conflicts in their

testimony.” People v. Richardson, 234 Ill. 2d 233, 251 (2009). However, that deference does not

extend to testimony that is “so lacking in credibility that a reasonable doubt of defendant’s guilt

remains.” Schott, 145 Ill. 2d at 207. Thus, a conviction based upon testimony that is

“improbable, unconvincing, and contrary to human experience requires reversal.” People v.

Vasquez, 233 Ill. App. 3d 517, 527 (1992). Finally, it has been clear since our supreme court’s

decision in Schott that the State has no added burden in a sexual assault case to demonstrate that

the complainant’s testimony is either substantially corroborated or strong enough to meet a clear

and convincing evidentiary burden; like any other criminal case, the State need only prove the

defendant’s guilt beyond a reasonable doubt. Schott, 145 Ill. 2d at 202-03.

¶ 30 Based on this last authority, we must first reject Mr. Parker’s argument that a lack of

physical or medical evidence presented by the State supports reversal in this case. Schott makes

clear that the State need not demonstrate that physical evidence substantially corroborates a

complainant’s testimony. Id. We furthermore do not find that the absence of physical evidence in

this case renders A.T.’s account “improbable, unconvincing, [or] contrary to human experience,”

such that it would preclude a reasonable fact finder from accepting her testimony. Vasquez, 233

Ill. App. 3d at 527. A.T. never testified or reported to police that Mr. Parker ejaculated, which

might have created an inconsistent story since no semen was found on her clothing or in Mr.

Parker’s vehicle (even assuming that traces of semen would have still been present when police

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searched the vehicle approximately one month after the incident). Nor is A.T.’s testimony that

she experienced pain when Mr. Parker penetrated her anus with his penis necessarily

contradicted by the absence of blood on her clothing or the backseat of the vehicle. A.T.’s

description of a back and forth struggle while Mr. Parker attempted to remove her clothing is

furthermore not inconsistent with the fact that her clothes were not torn.

¶ 31 Mr. Parker cites People v. Rivera, 2011 IL App (2d) 091060, and People v. Green, 140

Ill. App. 3d 35 (1986), to support his argument that the lack of corroborating physical evidence

requires reversal. Rivera is quite different because in that case DNA testing positively excluded

the defendant as the source of sperm found in the victim. Rivera, 2011 IL App (2d) 091060, ¶ 31.

Green is inapplicable because it was decided under the old, pre-Schott standard requiring a

complainant’s testimony to be either “clear and convincing” or corroborated by other evidence.

Green, 140 Ill. App. 3d at 40.

¶ 32 Mr. Parker also argues that A.T. offered inconsistent testimony that undermined her

credibility. Mr. Parker points out that, although A.T. testified that she told Officer DeYoung both

that she kicked and scratched Mr. Parker when he attempted to remove her clothing and that she

was unable to leave his vehicle because the doors were locked, Officer Young stated that A.T.

did not relay these facts to him. Mr. Parker also notes that, although on direct examination A.T.

stated that she told Mr. Parker that she needed to leave because it was getting late and Mr. Parker

refused to give back her clothes for ten minutes, on cross-examination A.T. stated that she

received a text message telling her to come home and that Mr. Parker sat there while she dressed

and left. The circuit court did not find that these statements impeached A.T.’s credibility and we

conclude that, viewed in the light most favorable to the prosecution, they do not create such

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inconsistency that no rational fact finder could find Mr. Parker guilty beyond a reasonable doubt.

¶ 33 Mr. Parker also argues that A.T.’s continued contact with him and failure to report the

incident for a month made her story less credible. Again, although these circumstances may have

affected A.T.’s credibility, they did not sufficiently undermine her testimony to require reversal.

A.T.’s subsequent contact with Mr. Parker was limited. She testified that she answered his call

later the same night simply to see what he would say and that, the next time they spoke, she

communicated to him that their relationship was over. Courts have noted that delay in reporting

sexual assault may be reasonable “where the victim’s silence is attributed to fear, shame, guilt

and embarrassment,” and have refused to reject a complainant’s testimony merely due to her

delay in reporting the incident. People v. Bowen, 241 Ill. App. 3d 608, 620 (1993). Here, A.T.

testified that she considered telling her parents and the police of the sexual assault right away but

decided not to because she felt scared and that, upon reflection, she changed her mind because

she did not want Mr. Parker to get away with what he had done to her. We do not find this

explanation so illogical that it rendered A.T.’s testimony unbelievable.

¶ 34 Finally, Mr. Parker argues that A.T.’s testimony regarding the force she claimed he used

against her during the assault was inherently unbelievable, contrary to human experience, and

vague. According to Mr. Parker, it is simply not believable that, over the course of two or more

hours in his vehicle, A.T. would not have ever called for help, even though one window was

rolled down, or would not have tried to get away from him when he began to perform oral sex on

her if the act was not consensual. Mr. Parker also finds it incredible that, after he purportedly

pulled A.T. onto his lap to initiate anal sex, she stopped fighting back after hitting him only once

in the head, especially when she testified that all he said was “don’t do that” and she did not

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testify that he used further physical force. Mr. Parker further argues that A.T.’s description of

force was too vague to be believable when she testified that Mr. Parker “forced” her to allow him

to perform oral sex but never explained the type of force that he used.

¶ 35 The use of force is an essential element of criminal sexual assault. People v. Alexander,

2014 IL App (1st) 112207, ¶ 52 (noting that lack of consent alone is insufficient). Beyond the

fact that the requisite force must be “something more than the force inherent in the sexual

penetration itself,” there is “no definite standard establishing the amount of force which the State

is required to prove in order to prove criminal sexual assault, and each case must be considered

on its own facts.” (Internal quotation marks omitted.) Id. ¶¶ 52, 54. “If circumstances show

resistance [would have] be[en] futile or life endangering or if the victim [wa]s overcome by

superior strength or fear, then useless or foolhardy acts of resistance are not required.” People v.

Vaughn, 2011 IL App (1st) 092834, ¶ 33.

¶ 36 Here, A.T. testified that she resisted Mr. Parker’s efforts to first remove her clothing, then

cried and asked him to stop performing oral sex on her, but that he continued to do so for

approximately ten minutes, only stopping “when he felt like it.” It can reasonably be inferred

from this testimony that physical resistance to Mr. Parker would have been futile.

¶ 37 A.T. further testified that she continued crying after the oral sex, told Mr. Parker that he

was “making her do things she didn’t want to,” and that she was scared. She testified that when

Mr. Parker then laid her horizontally across the backseat of the vehicle, she screamed, he asked

her if she thought he planned to rape her, and she told him yes. Despite this exchange, A.T.

testified that Mr. Parker then physically pulled her onto his lap, while she continued to protest,

and put his penis in her anus. A.T. further testified that she hit Mr. Parker on the head and Mr.

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Parker told her not to do that, which frightened her. This testimony, viewed in the light most

favorable to the prosecution, again demonstrated that A.T. first resisted Mr. Parker’s actions but

that she felt further resistance would be futile.

¶ 38 We find the cases Mr. Parker relies on in which convictions were overturned based on

insufficient evidence to be distinguishable. In People v. Herman, 407 Ill. App. 3d 688, 704-05

(2011), the complainant, a confessed drug addict, testified that she was raped by a Chicago

police officer. The defendant admitted to having sex with the complainant but insisted that the

act was consensual and took place when he was not on duty. Id. at 689. According to the

complainant, after smoking 6-8 rocks of cocaine she was induced by the defendant to go with

him in his squad car to her home, where he sexually assaulted her; when she reported the

incident, she claimed she was belittled by the police officers, offered bribes of alcohol and

money to go away, and made to participate in a reenactment of the assault in which her attorney

took photographs. Id. at 704-05. The complainant also changed her timeline of events numerous

times before and during trial, in some cases stating that the encounter occurred when the

defendant could not have been at her apartment. Id. at 705-06. Unlike the complainant in

Herman, A.T.’s testimony in this case was not so “fraught with inconsistencies and

contradictions” that it was “impossible for any fact finder reasonably to accept any part of it.” Id.

at 705, 709.

¶ 39 And although Vasquez, 233 Ill. App. 3d at 527, also involved an alleged sexual assault

that occurred in a vehicle, the complaint in that case testified both that he did not try to leave

even when the defendant exited the car to urinate and that he did not believe the defendant

intended to harm him. Moreover, the complainant in that case agreed that he himself suggested

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the two meet again in a tunnel or viaduct where, after another alleged assault occurred, he sought

no assistance from individuals who interrupted the sex act when they approached the viaduct. Id.

at 528. The court concluded that resistance, far from being futile, would likely have been

successful. Id. The facts of this case simply do not give rise to such an inference. Moreover, the

complainant in Vasquez had a motive to fabricate; he only reported the incident after the

defendant left a letter at the complainant’s foster home and the foster parents called the police.

Id. at 521, 528. As the circuit court in this case noted, A.T. had no such motive.

¶ 40 Mr. Parker relies most heavily on People v. Yeargan, 229 Ill. App. 3d 219, 227, 230, 232-

33 (1992), which he argues is comparable to this case because, like the complainant in Yeargan,

A.T.’s clothing was not ripped, she did not exhibit signs of physical abuse, no semen was present

on her clothes, and she never cried out for help. In Yeargan, however, the complainant described

a more violent encounter, alleging that the two defendants physically grabbed her by the arms,

took her down a dark alley and into a nearby garage, forcibly removed her clothing, and took

turns sexually assaulting her, each ejaculating multiple times. Yeargan, 229 Ill. App. 3d at 221-

22. The absence of physical evidence conflicted with the complainant’s story in a way that it

simply does not here.

¶ 41 It also bears noting that the court in Yeargan expressly acknowledged that it was making

a credibility determination, on a cold record, in a case involving a witness with a mental

disability, and that the circuit court “was in a much better position than [it] to view the evidence

in light of [the] complainant’s disability.” Id. The court nevertheless held that the record as a

whole undermined the complainant’s credibility so much that no rational trier of fact could

believe her version of events over that offered by the defendants. Id. This was a rare and

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dramatic step that, if warranted in Yeargan, is plainly not warranted on the facts of this case.

¶ 42 We conclude that the State presented sufficient evidence from which a rational trier of

fact could find Mr. Parker guilty beyond a reasonable doubt of both counts of criminal sexual

assault. Viewed in the light most favorable to the prosecution, A.T.’s testimony alone is not so

improbable, unconvincing, or contrary to human experience that no reasonable fact finder could

have found her credible.

¶ 43 II. Jury Waiver

¶ 44 Mr. Parker next contends that the circuit court erred by accepting his jury waiver without

ensuring that it was knowingly, intelligently, and voluntarily made. The record reflects that the

court asked Mr. Parker if it was his signature on the jury waiver, told him “[b]y signing that you

give up the right to have a trial by Jury,” and asked him whether he knew what a jury trial was,

to which Mr. Parker responded “Yes.” On appeal, Mr. Parker faults the court for failing to

additionally “explain a jury trial or a bench trial, address whether [Mr.] Parker understood that he

had a constitutional right to a jury trial, or explain the implications of waiving that right.” Nor

did the circuit court “ask [Mr.] Parker if any threats or promises had been made to obtain his jury

waiver, or explain that it was [Mr.] Parker’s choice, not his attorney’s, to make.” Mr. Parker

additionally argues that, by stating that it “needed” a jury waiver before trial could begin, the

circuit court treated his waiver as a foregone conclusion.

¶ 45 In response, the State argues that it can be inferred that Mr. Parker was made aware of his

right to a jury trial as a result of his recent plea of guilty and efforts to withdraw that plea in

connection with unrelated gun charges. The State also notes that, at no time during the bench

trial and on no previous occasion when the impending bench trial was mentioned in open court

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did Mr. Parker ever object. Finally, the State contends that, although Mr. Parker was 19 years old

when the alleged sexual assault took place, by the time he waived his jury rights four years later,

he was “a 23-year-old adult with a high school diploma.”

¶ 46 Mr. Parker acknowledges that he did not raise this issue in the circuit court but argues

that we may consider the claim as a matter of plain error. The plain error doctrine permits review

of unpreserved error where the error is clear or obvious and (1) “the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error,” or (2) “th[e] error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence.” People v. Eppinger, 2013 IL 114121, ¶ 18. We first determine

whether an error occurred at all. Id. ¶ 19.

¶ 47 A criminal defendant has the constitutional right to a trial by jury (U.S. Const., amends.

VI, XIV; Ill. Const. (1970), art. I, §§ 8, 13) but may knowingly and voluntarily waive that right

(People v. Bannister, 232 Ill. 2d 52, 65 (2008)). “[A] defendant who challenges a jury waiver

bears the burden of establishing that the waiver was invalid.” People v. Gibson, 304 Ill. App. 3d

923, 929-30 (1999). Section 103-6 of the Code of Criminal Procedure of 1963 provides that,

except for minor offenses only punishable by fines, a jury waiver is valid only where the right to

a jury trial is “understandingly waived by defendant in open court.” 725 ILCS 5/103-6 (West

2012). The circuit court has a duty to “ensur[e] that a defendant waives the right to a jury trial

expressly and understandingly” but “need not give any specific admonition or advice” for a jury

waiver to be valid. Bannister, 232 Ill. 2d at 66. A jury waiver’s validity “cannot rest on any

precise formula, but rather depends on the facts and circumstances of each particular case.” Id.

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Thus, although it is “preferable” for a circuit court to apprise a defendant of the right to a jury

trial, it is not constitutionally required. People v. Rincon, 387 Ill. App. 3d 708, 718 (2008).

Reviewing courts may consider both “a defendant’s prior interactions with the justice system”

and his “silence while his *** attorney requests a bench trial.” People v. Reed, 2016 IL App (1st)

140498, ¶¶ 6-7. Furthermore, although a written jury waiver “memorializes the defendant’s

decision” (Bannister, 232 Ill. 2d at 66), the absence of such a writing may be harmless error and

the presence of one, on its own, is insufficient to establish that a waiver is valid (Rincon, 387 Ill.

App. 3d at 718). “[T]he pivotal knowledge that the defendant must understand—with its

attendant consequences—is that the facts of the case will be determined by a judge and not a

jury.” Bannister, 232 Ill. 2d at 69. Where, as here, the facts surrounding the waiver are not in

dispute, whether a defendant knowingly, voluntarily, and intelligently waived his right to a jury

trial is a legal question that we review de novo. Id. at 66.

¶ 48 We must initially reject the State’s argument that Mr. Parker’s knowledge of his right to a

trial by jury may be inferred from his prior experience with the criminal justice system. While

Mr. Parker was on bond pending trial in this case he was arrested on separate charges and

pleaded guilty to aggravated unlawful use of a weapon. He later unsuccessfully sought to

withdraw his plea when it became clear that he was ineligible for a boot camp program in lieu of

incarceration. The State argues that “quality can overcome quantity” and posits that even though

this was Mr. Parker’s only other experience with the criminal justice system, “it can strongly be

inferred” both that Mr. Parker “had significant conversations with counsel concerning the plea

process and its consequences” and that he “was properly admonished about his jury rights during

that plea.” The State cites no authority in support of this argument. Moreover, the inferences it

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suggests we draw are based solely on speculation as to what defense counsel or the court

discussed with Mr. Parker in that case, which did not result in either a bench trial or a jury trial.

More is required to infer that a defendant’s prior experience with the criminal justice system

familiarized him with his right to a trial by jury. See, e.g., Bannister, 232 Ill. 2d at 71 (right to a

jury trial was knowingly waived where the record included the report of proceedings for the

defendant’s previous trial on other crimes, which clearly demonstrated that he had been

admonished regarding his right to a jury trial and chose a bench trial); People v. Reed, 2016 IL

App (1st) 140498, ¶ 8 (right to jury trial was knowingly waived where the defendant was not

only convicted of eight prior felonies and multiple misdemeanors, but had previously waived a

jury trial on two occasions).

¶ 49 However, we must also reject Mr. Parker’s contention that the circuit court treated the

fact of his waiver as a foregone conclusion by stating that it “need[ed]” a jury waiver before the

bench trial in this case could begin. The record indicates that, when she made the statement, the

circuit court judge was addressing counsel to request copies of certain documents in the case. A

bench trial had already been requested, scheduled, and discussed on the record numerous times

in connection with various continuances, and Mr. Parker had already signed and filed his jury

waiver. In this context, the circuit court’s comment could not reasonably have been construed by

Mr. Parker as a pronouncement that a signed jury waiver was required of him before the trial

could begin.

¶ 50 In his remaining arguments, Mr. Parker essentially faults the circuit court for failing to

make certain inquiries and admonishments discussed in People v. Tooles, 177 Ill. 2d 462, 470-73

(1997), including an explanation of the difference between a jury trial and a bench trial, a request

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that the defendant explain this difference in his own words, emphasis on the defendant’s

constitutional right to a jury trial and the fact that a jury waiver is irrevocable, and confirmation

that the defendant’s waiver was made after consultation with counsel. Rather than holding that

these were requirements for a valid jury waiver, however, our supreme court in that case

confirmed that “no set admonition or advice is required” because validity “turns on the facts and

circumstances of each particular case.” Id. at 469. In each of the three cases consolidated in

Tooles, there was no written jury waiver. Id. at 464. Although a written jury waiver alone is not

sufficient to demonstrate a knowing, intelligent, and voluntary waiver, compliance with this

statutory requirement weighs in favor of such a finding. Bannister, 232 Ill. 2d at 66; Rincon, 387

Ill. App. 3d at 718. The court in Tooles was not called upon to decide what admonishments or

inquiries would be sufficient where, as here, a written jury waiver is present.

¶ 51 Mr. Parker further argues that his exchange with the circuit court resembles the one found

insufficient in People v. Sebag, 110 Ill. App. 3d 821 (1982), a case that did involve a written jury

waiver. There, the circuit court told the defendant “You are entitled to have your case tried

before a jury or judge” and the defendant responded “Judge.” (Internal quotation marks omitted.)

Id. at 828-29. The circuit court then said, “[d]o you understand that by waiving a jury at this time

that you cannot reinstate it[?]” to which the defendant replied “Yes.” (Internal quotation marks

omitted.) Id. The appellate court concluded that, under the circumstances, this exchange was not

sufficient to ensure a knowing, intelligent, and voluntary waiver. Id. It noted that “[t]he

defendant was without benefit of counsel, and it d[id] not appear that he was advised of the

meaning of a trial by jury nor d[id] it appear that he was familiar with criminal proceedings.” Id.

Importantly, although the defendant was charged with both battery and public indecency, the

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circuit court’s discussion with him about his jury waiver took place only in the context of his

battery charge. Id. The appellate court concluded that, “[t]aken as a whole,” the record did not

establish a valid waiver of the defendant’s right to a jury trial on the charge of public indecency.

Id. In contrast, Mr. Parker was represented by counsel and there is no indication in the record

that the discussion regarding his jury waiver related to only a portion of the case against him.

¶ 52 Other cases cited by Mr. Parker are similarly distinguishable on their facts. See People v.

Phuong, 287 Ill. App. 3d 988, 995-96 (1997) (holding that a jury waiver was invalid where,

although the defendant signed a translated jury waiver form, she was a Chinese speaker who had

only recently immigrated to this country and it was unclear whether she understood what a jury

was); People v. Murff, 69 Ill. App. 3d 560, 564 (1979) (holding that a jury waiver was invalid

where the defendant, who was receiving psychiatric treatment, gave a nonresponsive answer

when asked by the circuit court if he understood what a jury trial was).

¶ 53 We conclude that Mr. Parker’s jury waiver was valid. The record in this case

demonstrates that Mr. Parker was made aware of his right to a jury trial. His signed jury waiver

and affirmation in open court show that he knowingly and voluntarily waived that right. Having

found no error, there can be no plain error. People v. Calhoun, 404 Ill. App. 3d 362, 382 (2010).

¶ 54 III. Constitutionality of the Sex Offender Registry Act

¶ 55 Mr. Parker’s convictions for criminal sexual assault require that he register as a “sexual

predator” under the Illinois Sex Offender Registry Act (SORA) (730 ILCS 150/2(E)(1) (West

2012)). Mr. Parker argues that this classification, and the lifetime in-person reporting

requirements and other restrictions that it imposes on him without regard for his rehabilitative

potential, is unconstitutional. Mr. Parker insists that, as applied to him—a 19-year-old at the time

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of the assault, whom the circuit court described at sentencing as “not a bad young man” but

someone who “lost control of a situation”—the reporting requirements and restrictions set out in

SORA and other related statutes applicable to sex offenders (collectively the SORA Statutory

Scheme) constitute cruel and unusual punishment in violation of the eighth amendment of the

United States Constitution (U.S. Const., amend. VIII) and are disproportionate to the severity of

his crime in violation of article I, section 11, of the Illinois Constitution (Ill. Const. 1970, art. I,

§ 11). Mr. Parker additionally asserts that SORA is facially unconstitutional because it violates

the procedural and substantive due process rights guaranteed by both the fourteenth amendment

to the United States Constitution (U.S. Const., amend. XIV) and article I, section 2 of the Illinois

Constitution (Ill. Const. 1970, art. I, § 2).

¶ 56 The constitutionality of a statute is a question of law which we review de novo and which

may be raised at any time. People v. Robinson, 2011 IL App (1st) 100078, ¶ 12. Statutes are

afforded a presumption of constitutionality; we have an obligation to construe a statute in a

manner that will uphold its constitutionality if reasonably possible. People v. Molnar, 222 Ill. 2d

495, 508 (2006). The burden is on the party challenging the validity of the statute to establish its

constitutional infirmity. Id. at 509.

¶ 57 A. Eighth Amendment and Proportionate Penalties Challenge

¶ 58 1. Whether the SORA Statutory Scheme is Punitive

¶ 59 SORA “was passed by the General Assembly ‘in response to concern over the

proliferation of sex offenses against children.’ ” People v. Cornelius, 213 Ill. 2d 178, 194 (2004)

(quoting People v. Adams, 144 Ill. 2d 381, 386 (1991)). “By requiring sex offenders to register

with local law enforcement agencies, ‘the legislature sought to create an additional method of

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protection for children from the increasing incidence of sexual assault and sexual abuse.’ ” Id.

(quoting Adams, 144 Ill. 2d at 387). Mr. Parker acknowledges that his as-applied eighth

amendment and proportionate penalties challenge to the SORA Statutory Scheme depends on a

finding that the legislation is punitive (People ex rel. Birkett v. Konestki, 233 Ill. 2d 185, 207

(2008)) and that the Illinois Supreme Court has previously upheld the constitutionality of earlier

versions of the sex registration and notification statutes against constitutional challenges (see,

e.g., Cornelius, 213 Ill. 2d 178; People v. Malchow, 193 Ill. 2d 413 (2000); Adams, 144 Ill. 2d

381). Mr. Parker’s argument is based on what he refers to as the “2014 version of SORA,” which

includes substantive amendments to the SORA Statutory Scheme passed by the legislature over

the years since Cornelius was decided in 2004.

¶ 60 There can be no dispute that the current version of the SORA Statutory Scheme has

become “more onerous with regard to the amount of information a sex offender must disclose,

the number of agencies to which the offender must disclose that information, and how often a

sex offender must register.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51, appeal

denied, No. 120381 (Ill. Mar. 30, 2016). Mr. Parker is required to register in person with law

enforcement within three days of his release from prison and to provide and update a long list of

documents and information, including his photograph, current address, employer, school, e-mail

addresses, Internet identities, registered URLs, signed terms and conditions of his parole or

release, information about his qualifying offense, license plate numbers of any vehicles

registered to him, telephone numbers, and any distinguishing marks on his body. 730 ILCS

150/3(a), (c)(4) (West 2012). For the rest of his life, Mr. Parker will need to register with and

provide an itinerary to law enforcement agencies in any municipality or county where he will be

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temporarily domiciled for three or more days. 730 ILCS 150/3(a) (West 2012). He will also need

to register with the security director of any institution of higher learning where he may attend or

work. 730 ILCS 150/3(a)(2)(i), (ii) (West 2012). If Mr. Parker fails to comply with any of these

or other mandatory reporting requirements, he may be convicted of a class 3 felony (730 ILCS

150/10(a) (West 2012)), carrying a sentence of up to five years in prison (730 ILCS 5/5-4.5-

40(a) (West 2012)).

¶ 61 Certain provisions of the SORA Statutory Scheme furthermore “directly restrict where [a

sex offender] can live, work, and even move about his [or her] community.” Avila-Briones, 2015

IL App (1st) 132221, ¶ 51. For example, Mr. Parker is prohibited from knowingly residing

within 500 feet of a school that children under the age of 18 attend or within 500 feet of a

playground or day care facility. 720 ILCS 5/11-9.3(b-5), (b-10) (West 2012). He cannot work at

a county fair where children are present (720 ILCS 5/11-9.3(c-5) (West 2012)), work at a facility

that “provid[es] programs or services exclusively directed toward persons under the age of 18”

(720 ILCS 5/11-9.3(c) (West 2012)), drive a food or ice cream truck (720 ILCS 5/11-9.3(c-8)

(West 2012)), or drive an ambulance or other emergency vehicle (id.). He cannot “participate in

a holiday event” involving children under 18 years of age who are not his own children. 720

ILCS 5/11-9.3(c-2) (West 2012). Nor may he knowingly be present in or loiter within 500 feet of

any public park. 720 ILCS 5/11-9.4-1(b) (West 2012). He is furthermore prohibited from

changing his name (720 ILCS 5/21-101 (West 2012) and is required to renew his driver’s license

annually (720 ILCS 5/5-5-3(o) (West 2012)). The violation of any of these provisions is a Class

4 felony. 720 ILCS 5/11-9.3(f) (2012); 720 ILCS 5/11-9.4-1(d) (West 2012).

¶ 62 Mr. Parker does not contend that the General Assembly imposed these requirements and

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restrictions with the goal of punishing sex offenders. Rather, it is his position that the additional

burdens imposed by these and other amendments to the SORA Statutory Scheme are so

significant that the statutes have become punitive, under the factors set out in Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), regardless of the legislature’s intent.

¶ 63 We agree that the current statutory scheme goes far beyond the basic registration

requirement first enacted in 1987. As our supreme court noted in Adams, 144 Ill. 2d at 388,

“[a]part from the relatively simple act of complying, th[at] requirement [wa]s an innocuous duty

compared to the potential alternative of spending an extended period of years in prison.” The

“disability imposed by the [law] f[ell] short of being severe” in significant part because the mere

duty to register “impose[d] no restraints on liberty or property.” Id. at 387-88. And in 2000,

when the supreme court concluded in Malchow, 193 Ill. 2d at 421-24, that the overall effect of

the Sex Offender and Child Murderer Community Notification Law (730 ILCS 152/101 et seq.

(West 1998))—enacted in 1996 to operate in conjunction with the registration law—was not so

punitive that it negated the legislature’s intent to protect the public, it specifically noted that the

law “d[id] not place an affirmative disability or restraint on sex offenders” (emphasis in original),

their “movements and activities [we]re not restricted in any way,” the law’s provisions were not

akin to traditional “stigmatization penalties like branding, stockading, pillaring, or banishment,”

and the reach of the law’s provisions was “not excessive to achieve the legitimate purpose of

protecting the public.” The current SORA Statutory Scheme certainly does place affirmative

disabilities and restraints on registrants by restricting their movements and activities. A punitive

effect sufficient to negate the legislature’s protective intent, however, must be founded upon

“ ‘the clearest proof.’ ” Malchow, 193 Ill. 2d at 421 (quoting Kansas v. Hendricks, 521 U.S. 346,

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361 (1997)). Deciding whether that burden is met is complicated by the fact that protection of the

public and punishment of sex offenders are not mutually exclusive effects of the statutory

scheme; in many instances stronger protection of the public imposes a heightened burden on

registrants.

¶ 64 In his reply brief, Mr. Parker asks us to consider the very recent decision in Does # 1-5 v.

Snyder, 834 F.3d 696, 705-06 (6th Cir. 2016), a case in which—in the context of a civil

challenge to certain retroactive amendments—the Sixth Circuit concluded that Michigan’s sex

offender registration law had crossed the line from a civil regulatory statute to a law with

punitive effects. The statute the court considered in Does bears many resemblances to the Illinois

SORA Statutory Scheme: sex offenders must register in person quarterly or annually and provide

a host of personal information that is then made available online; they cannot live, work, or loiter

within 1000 feet of a school; and they are automatically divided into classifications, ostensibly

based on their dangerousness to society, which are tied solely to the crimes they were convicted

of, rather than to individual assessments. Does, 834 F. 3d at 697-98. The Sixth Circuit concluded

that the Michigan legislature did not intend the law to be punitive but that, in contrast to a “more

modest” Alaskan law held constitutional by the United States Supreme Court in Smith v. Doe,

538 U.S. 84, 92 (2003), the punitive effects of the Michigan law overrode the legislature’s intent.

Does, 834 F.3d at 701-06. The court observed that the law’s geographical restrictions were “very

burdensome, especially in densely populated areas,” causing sex offenders great difficulty in

finding places to legally live or work. Id. at 701-03. It furthermore concluded that the law—

which sought to keep sex offenders away from opportunities to reoffend, looked back only to the

offense in imposing its restrictions, and marked sex offenders as individuals who could not be

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admitted into full society—“advance[d] all the traditional aims of punishment: incapacitation,

retribution, and specific and general deterrence.” Id. at 702-04. Recognizing the law’s rational

connection to a nonpunitive purpose, the court nevertheless cited empirical studies questioning

the effectiveness of such laws as a means toward achieving that goal, noting that evidence

suggests not only that offense-based public registration has no impact on recidivism, but that it

may in fact increase recidivism by preventing sex offenders from getting and keeping jobs or

finding housing. Id. at 704-05.

¶ 65 Although we agree that the Sixth Circuit’s decision in Does is a thorough and persuasive

analysis of Michigan’s sex offender registration law that raises real areas of concern, it

nevertheless concerns a different statutory scheme and is not binding on this court. We also note

that the record in this case, in which the constitutional claim is raised in the context of a criminal

appeal, simply does not contain the extensive demonstration—including maps visually depicting

the effects of the Michigan law’s geographical restrictions—that was relied on by the Sixth

Circuit in Does to show the significant punitive effects of the Michigan law.

¶ 66 Turning to our own precedent, we note that the question of whether the current SORA

Statutory Scheme has evolved to become primarily punitive in nature has recently been posed to

this court on at least three recent occasions. The State urges us to follow In re A.C., 2016 IL App

(1st) 153047, ¶¶ 77-79, a juvenile delinquency case in which a panel of the First District of this

court held that the evolution of the SORA Statutory Scheme reflects “social changes and [does]

not manifest a punitive bent.” Mr. Parker, however, argues that crucial differences between the

provisions of the SORA Statutory Scheme applicable to adults as compared to juveniles make

A.C. irrelevant to our analysis. In two recent cases involving adult offenders, panels of the First

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and Fifth Districts of this court declined to decide whether the SORA Statutory Scheme has

become punitive, finding the constitutional challenges raised by the defendants in those cases

were deficient on other grounds. See Avila-Briones, 2015 IL App (1st) 132221; People v.

Pollard, 2016 IL App (5th) 130514. We conclude that here, as in Avila-Briones and Pollard, it is

ultimately unnecessary for us to reach this issue.

¶ 67 B. Eighth Amendment and Proportionality

¶ 68 The essence of Mr. Parker’s eighth amendment and proportionate penalties challenge is

that the SORA Statutory Scheme’s lifetime registration requirement “is particularly harsh and

unconstitutionally disproportionate” as applied to him, an individual who was only 19 years old

at the time of his offense and had only one other felony conviction for a nonviolent crime. Mr.

Parker contends that his convictions for criminal sexual assault in this case were the result of a

“misstep of taking things too far on [a] single occasion” for which he should not be penalized by

living “a severely restricted existence for the rest of his life.” Mr. Parker asks us to hold that the

SORA Statutory Scheme does not apply to him or, alternatively, declare that its definition of a

“sexual predator” (730 ILCS 150/7 (West 2014)) does not apply to him, which he contends

would effectively reduce his term of registration and related restrictions to a period of ten years.

¶ 69 As our supreme court has recognized, “the legislature’s discretion in setting criminal

penalties is broad” and it “is institutionally better equipped to gauge the seriousness of various

offenses and to fashion sentences accordingly.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005).

Constraining this discretion are the limits imposed by the eighth amendment of the United States

Constitution, which prohibits the infliction of “cruel and unusual punishments” (U.S. Const.,

amend. VIII), and the proportionate penalties clause of the Illinois Constitution, which prohibits

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sentences that are “grossly disproportionate” to the crimes for which they are imposed (Ill.

Const. 1970, art. I, § 11). The latter provides that “[a]ll penalties shall be determined both

according to the seriousness of the offense and with the objective of restoring the offender to

useful citizenship” (id.) and prohibits criminal punishments that are “cruel, degrading, or so

wholly disproportionate to the offense as to shock the moral sense of the community” (Sharpe,

216 Ill. 2d at 493).

¶ 70 In Avila-Briones, this court noted that our supreme court has never decided whether the

current version or any historical version of the SORA Statutory Scheme runs afoul of these

constitutional limitations. Avila-Briones, 2015 IL App (1st) 132221, ¶ 57. The Avila-Briones

court found the recent decision of the Kansas Supreme Court in State v. Mossman, 281 P.3d 153

(Kan. 2012), to be persuasive. Mossman, like Avila-Briones, involved the statutory rape of a

teenaged girl by a defendant in his twenties. Mossman, 281 P.3d at 156-57; Avila-Briones, 2015

IL App (1st) 132221, ¶ 60. Although the encounters in those cases did not involve force, the

youth of the victims made them legally incapable of exercising sexual consent. Avila-Briones,

2015 IL App (1st) 132221, ¶ 60. Noting that the requirements and restrictions imposed on the

offenders in those cases, if perhaps not precisely matched to the nature of their crime, were still

legitimately related to the penological goal of preventing recidivism, the Avila-Briones court,

like the Mossman court, concluded that a lifetime of post-release supervision was not

disproportionate to the severity of the defendant’s crime. Id. ¶¶ 59, 61-62, 67.

¶ 71 Here, although A.T. was 18 years old at the time of the offense, Mr. Parker’s conviction

for criminal sexual assault was based on the circuit court’s finding that A.T. was compelled

through physical force or threat of force to submit to sexual contact with Mr. Parker. We cannot

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conclude that this offense is less severe than the one considered in Avila-Briones, which involved

no physical force or threat of force. Like the court in that case, we find that the requirements and

restrictions Mr. Parker faces are not disproportionate to the severity of his crimes.

¶ 72 In support of his eighth amendment and proportionate penalties argument, Mr. Parker

cites People v. Leon Miller, 202 Ill. 2d 328, 340 (2002), in which the Illinois Supreme Court

upheld an as-applied challenge to the imposition of a mandatory natural life sentence for a

juvenile who was tried in adult court and convicted of multiple murders under a theory of

accountability. Although Mr. Parker was not a juvenile at the time of his offenses, he claims that

the distinction is an arbitrary one, where scientific research has concluded that “the brain does

not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment,

planning for the future, foresight of consequences, and other characteristics that make people

morally culpable.” Petition for Writ of Certiorari at 13, Patterson v. Texas, 536 U.S. ___ (2002)

(No. 02-6010) (declaration of Dr. Ruben C. Gur, Ph.D.). Mr. Parker also notes that, if he had

been only two years younger on the date of his offense, he would have been afforded an

opportunity to eventually demonstrate that he was rehabilitated. See 730 ILCS 150/3-5(c)-(d)

(West 2014).

¶ 73 Although the State does not address Leon Miller, we do not find it applicable. While we

agree that the restrictions imposed by the SORA Statutory Scheme are serious, they cannot be

compared to the sentence of life in prison that was imposed in Leon Miller. See Avila-Briones,

2015 IL App (1st) 132221, ¶ 65 (finding Leon Miller distinguishable on this basis).

¶ 74 Accordingly, we hold that, even if the requirements and restrictions of the SORA

Statutory Scheme are a form of punishment, they are not grossly disproportionate to Mr. Parker’s

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offense.

¶ 75 III. Due Process Challenges

¶ 76 Mr. Parker also makes two facial challenges to the SORA Statutory Scheme. He argues

both that the scheme violates the procedural due process rights of sex offenders because it

provides those offenders with a low chance of recidivism no mechanism by which they can be

removed or excluded from the scheme’s requirements and restrictions. Mr. Parker also argues

that the SORA Statutory Scheme violates the substantive due process rights of sex offenders

because it infringes on fundamental rights or, in the alternative, fails a rational basis review. The

State urges us to follow recent decisions of this court rejecting these same arguments.

¶ 77 Shortly after Mr. Parker filed his opening brief in this case, the Avila-Briones court

examined and rejected the very constitutional arguments that Mr. Parker makes here. Avila-

Briones, 2015 IL App (1st) 132221, ¶¶ 69-92. These arguments were likewise rejected by this

court in A.C., 2016 IL App (1st) 153047 (rejecting due process and eighth amendment challenges

to the SORA Statutory Scheme as applied to a juvenile offender) and Pollard, 2016 IL App (5th)

130514, ¶ 23 (following the “persuasive reasoning” articulated in Avila-Briones and rejecting

procedural and substantive due process claims and eighth amendment proportionate penalties

challenges to the SORA Statutory Scheme). Having considered Mr. Parker’s arguments, we

agree with the conclusions reached in those decisions.

¶ 78 The Avila-Briones court addressed the argument that there is a fundamental right “to be

free from a lifetime of burdensome, intrusive monitoring and restrictions,” and that the SORA

Statutory Scheme infringes on that right, or that in any event the provisions do not pass rational

basis review. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 69-71. After analyzing the

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prohibitions, obligations, and mandatory dissemination of information required by the SORA

Statutory Scheme, the court determined that the provisions did not infringe on any fundamental

right. Id. ¶¶ 72-76 (citing Doe v. City of Lafayette, 377 F.3d 757, 770-71 (7th Cir. 2004);

Cornelius, 213 Ill. 2d at 203-04; In re J.W., 204 Ill. 2d 50, 67 (2003); Rodrigues v. Quinn, 2013

IL App (1st) 121196, ¶¶ 1-2, 7; In re Marriage of Charnogorsky, 302 Ill. App. 3d 649, 660

(1998); and Guerrero v. Ryan, 272 Ill. App. 3d 945, 951 (1995)). The court then determined that

the SORA Statutory Scheme passes rational basis review because it serves the legitimate state

interest of protecting the public from sex offenders and is rationally related to that interest

despite the possibility that it may be over-inclusive. Id. ¶¶ 82-84 (citing Maddux v. Blagojevich,

233 Ill. 2d 508, 547 (2009); Cornelius, 213 Ill. 2d at 205; J.W., 204 Ill. 2d at 67-68; Adams, 144

Ill. 2d at 390; and Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 369 (1986)).

¶ 79 Mr. Parker respectfully urges this court to disagree with the Avila-Briones court’s

conclusion that none of the SORA monitoring requirements or restrictions infringe on a

fundamental right. However, in reference to the registration requirement itself, the court in Avila-

Briones relied on binding Illinois Supreme Court precedent. Avila-Briones, 2015 IL App (1st)

132221, ¶ 74 (citing J.W., 204 Ill. 2d at 66, which held that requiring juveniles to register as a

sexual offender for the rest of their natural life does not implicate a fundamental right, and

Cornelius, 213 Ill. 2d at 204, which held that dissemination of sex offenders’ personal

information does not impact fundamental rights). The Avila-Briones court then analyzed each of

the additional restrictions on where a registered sex offender may work, live, or be present, the

license renewal requirement, and the prohibition on a registered sex offender changing his or her

name, and declined to recognize any of them as implicating what would clearly be a new

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fundamental right. Id. ¶¶ 75-76. We agree that these burdens and restrictions, while not

insignificant, simply do not rise to the level of infringement on a fundamental right.

¶ 80 Mr. Parker also cites studies showing that most sex offenders do not recidivate. However,

the rational basis test requires only that the challenged statute “bears a rational relationship to a

legitimate legislative purpose and is neither arbitrary nor unreasonable.” People v. Hollins, 2012

IL 112754, ¶ 15. “As long as there is a conceivable basis for finding a rational relationship, the

law will be upheld.” Harris, 111 Ill. 2d at 368. While 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. Avila-Briones, 2015 IL App (1st) 132221,

¶ 84.

¶ 81 The Avila-Briones court also rejected the argument that the SORA Statutory Scheme

violates procedural due process by failing to include a mechanism by which the state would

ensure that only “those who actually pose a risk of committing additional sex crimes” would be

subject to the burdensome restrictions of those laws. Id. ¶ 90. The court held, relying on

Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4, 7-8 (2003), that no such

additional procedures would be necessary to satisfy due process because the SORA Statutory

Scheme is based entirely upon the convicted offense, which the offender received “a

procedurally safeguarded opportunity to contest,” and the offender’s likelihood to reoffend is not

relevant to determining whether he committed the charged crime. (Internal quotation marks

omitted.) Avila-Briones, 2015 IL App (1st) 132221,. ¶¶ 88-92.

¶ 82 Mr. Parker argues that defending himself against the charged criminal offenses is quite

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different from the case he would make in an attempt to disprove the likelihood that he would

reoffend. This may well be true. However, as the court recognized in Avila-Briones, once it has

been determined that the SORA Statutory Scheme is not unconstitutional, there is no

constitutional mandate for procedures that would allow a convicted defendant to demonstrate

that he or she is not likely to reoffend. Id. Thus, there is no basis for finding that the SORA

Statutory Scheme violates procedural due process requirements.

¶ 83 CONCLUSION

¶ 84 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 85 Affirmed.

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