People v. Ratliff

2022 IL App (1st) 192067-U

• Court: Appellate Court of Illinois
• Decided: June 27, 2022
• Docket: 1-19-2067
• Status: Unpublished

Opinion

2022 IL App (1st) 192067-U

FIRST DISTRICT, FIRST DIVISION June 27, 2022

No. 1-19-2067

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 JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 16 CR 8210 ) KLEARENCE RATLIFF, ) Honorable ) Patrick Coughlin, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Hyman and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for predatory criminal sexual assault is affirmed where the other-crimes evidence was properly admitted and any error in instructing the jury did not rise to the level of plain error. This court lacks jurisdiction to consider defendant’s constitutional challenge to the Illinois statutory requirements for convicted sex offenders.

¶2 Following a jury trial, defendant Klearence Ratliff was convicted of two counts of

predatory criminal sexual assault of the seven-year-old victim and sentenced to a total of 14

years’ incarceration. On appeal, defendant argues that (1) the trial court erred in admitting other-

crimes evidence; (2) the trial court erred in failing to instruct the jury as required by section 115- No. 1-19-2067

10(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10(c) (West 2016)); and (3)

the requirements of the Sex Offender Registration Act (SORA) (730 ILCS 150/2(B), 150/3(a)

(West 2018)) are unconstitutional. For the reasons that follow, we affirm defendant’s conviction

and dismiss his SORA claim.

¶3 BACKGROUND

¶4 Defendant was charged with predatory criminal sexual assault based on the allegation

that he penetrated then seven-year-old I.W.’s vagina and anus with his finger. Prior to trial, the

State moved to admit evidence of other crimes by defendant. The State argued such evidence

was admissible to show propensity under section 115-7.3 of the Code (725 ILCS 115-7.3 (West

2016)) and to prove intent, absence of mistake or misunderstanding, or modus operandi. The trial

court granted the motion, allowing evidence that defendant touched the vagina of A.S., who was

between the ages of 10 and 11 at the time, over her clothing, prior to assaulting I.W.

¶5 Pursuant to section 115-10 of the Code, the State also moved to introduce the substance

of I.W.’s initial outcry to her mother S.S. on April 2, 2016, as well as a video recording of an

interview of I.W. conducted at the LaRabida Children’s Advocacy Center on April 20, 2016 (the

VSI). Following a hearing, the trial court found that both the April 2, 2016, outcry and the VSI

contained “sufficient safeguards of reliability,” and were admissible.

¶6 At trial, I.W. testified that she was 10 years old and was born on August 9, 2008. When

she was seven years old, she lived in Riverdale with her mother S.S., older sister A.S., defendant,

and half-sister A. The morning of April 2, 2016, S.S. went to the store and left I.W. at home with

A.S., A, and defendant. I.W. was sleeping on the couch with A, lying on her side and facing the

back of the couch while defendant was on the opposite end.

¶7 I.W. was awoken by defendant kneeling behind her and “dig[ging]” in her pants with his

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hand. Defendant inserted his hand into her underwear and touched her “private part” and

buttocks. I.W. explained that her “private part” was her vagina, and that defendant touched

“inside” her buttocks. Defendant removed his hand from I.W.’s pants, licked his finger, and

washed his hands.

¶8 When S.S. returned to the house later that morning, I.W. told her she needed to talk. I.W.

appeared fidgety and nervous, fumbled with her hands, and could not keep still. S.S. took her to

the basement so they could talk in private. I.W. became “teary-eyed” and told S.S. that, while she

was sleeping, defendant touched her on her “coocoo” and her buttocks. S.S. noted that “coocoo”

was a term the family used for vagina. On cross-examination, I.W. acknowledged that she did

not tell S.S. that defendant put his finger inside her vagina or buttocks.

¶9 That evening, Registered Nurse Brittany Kelleher and two physicians performed a sexual

assault examination of I.W. at Christ Hospital. I.W. told Ms. Kelleher that she was “asleep on the

couch with her younger sister and her stepdad, and she woke up, and that he put his hands in her

panties and put his finger in her butt and her coocoo, and after he licked it.”

¶ 10 Linda Ford conducted a videorecorded VSI of I.W. at LaRibida on April 20, 2016. In the

VSI, which was published to the jury, I.W. told Ms. Ford that defendant put his finger in her

buttocks and vagina.

¶ 11 Defendant was arrested on April 21, 2016 and consented to a buccal swab. Christopher

Webb, a forensic scientist with the Illinois State Police, testified that forensic testing revealed

that a standard taken from I.W.’s vaginal swab did not contain male DNA and a standard from

I.W.’s anal swab contained a small amount of male DNA unsuitable for profiling. A swab taken

from the front panel and crotch area of I.W.’s underwear revealed a male DNA profile that

matched defendant’s DNA profile. Defendant could not be excluded from the male DNA profiles

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taken from the rear panel and waistband of I.W.’s underwear.

¶ 12 A.S. was 14 years old at the time of trial. Defendant lived with A.S., S.S., and I.W. until

2016. A.S. testified that, at some point while defendant lived with them, A.S. and defendant were

playing in S.S.’s room when defendant “grabbed” her vagina over her clothes. A.S. did not

immediately tell anyone what happened but testified that “[i]t happened more than once.”

¶ 13 The trial court sustained defendant’s general foundational objection to A.S. testifying to

the “other time that it happened.” A.S. could not remember how old she was during the second

instance but recalled that she was living in Riverdale at the time. After the trial court sustained

another foundational objection, the parties had a discussion outside the presence of the jury. The

State asserted that the alleged conduct between defendant and A.S. occurred between May 1,

2015, and September 30, 2015. The trial court ultimately sustained the objection and ruled that

while A.S. was not required to testify to the exact date, the State was required to narrow the

possible time frame for the conduct.

¶ 14 A.S. testified that she could not remember how old she was the second time defendant

touched her vagina, nor could she remember what grade she was in or what season it was at the

time, but stated that the two incidents were not “right after each other.” A.S. told S.S. what

happened at some point thereafter, and S.S. talked to defendant but did not call the police.

¶ 15 Defendant testified in his own defense that he had a “good” relationship with I.W. during

the five years they lived together. On April 2, 2016, defendant was on the living room couch

with I.W. and A while S.S. was gone. Defendant denied touching I.W.’s vagina or anus.

¶ 16 At the jury instruction conference, the State did not tender Illinois Pattern Instruction,

Criminal, No. 11.66 (approved December 8, 2011) (hereinafter IPI Criminal No. 11.66), which is

the pattern instruction required when evidence is admitted pursuant to section 115-10. Similarly,

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defense counsel did not request IPI Criminal No. 11.66 be given or object to the failure to give

the instruction.

¶ 17 The jury found defendant guilty of both counts of predatory criminal sexual assault and

he was sentenced to a total term of 14 years’ incarceration. The trial court advised defendant that,

based on his convictions, he was subject to the requirements of the Sex Offender Registration

Act (SORA) (730 ILCS 150/2(B), 150/3(a) (West 2018)) and would have “to register as a sex

offender upon [his] release.” This appeal follows.

¶ 18 ANALYSIS

¶ 19 Other-Crimes Evidence

¶ 20 Defendant alleges that the trial court erred in admitting evidence that defendant sexually

assaulted A.S. in 2015 when she was between the ages of 10 and 11 years old. Defendant admits

that he forfeited this issue by failing to raise it in his posttrial motion but urges us to review this

claim for ineffective assistance of counsel. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Under

the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show

that his counsel’s representation “fell below an objective standard of reasonableness” and

second, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Id. at 688, 694.

¶ 21 Generally, evidence of other crimes is inadmissible to show a defendant’s propensity to

engage in criminal activity. People v. McKibbins, 96 Ill. 2d 176, 182 (1983). However, there is

“a limited exception to this general rule of inadmissibility for other-crimes evidence to show the

defendant’s propensity to commit crimes” if a defendant is tried on one of the enumerated sex

offenses set forth in Section 115-7.3 of the Code of Criminal Procedure of 1963. 725 ILCS

5/115-7.3 (West 2016); People v. Ward, 2011 IL 108690, ¶ 25.

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¶ 22 Before other-crimes evidence may be admitted, the statute requires the trial court to

“apply a balancing test, weighing the probative value of the evidence against the undue prejudice

it may produce against the defendant.” Id. ¶ 26. Relevant considerations include: (1) the

proximity of time between the other offense to the charged offense; (2) the degree of factual

similarities between the offenses; and (3) any other relevant facts and circumstances. 725 ILCS

5/115-7.3(c)(1)-(3). A circuit court’s ruling concerning the admissibility of other-crimes

evidence is reviewed for an abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003);

People v. Johnson, 2020 IL App (1st) 162332, ¶ 40.

¶ 23 Here, the State sought to admit other crimes evidence pursuant to section 115-7.3 to

establish defendant’s propensity to commit sexual assault. Specifically, the State sought to admit

evidence that defendant committed two prior sex offenses against A.S. in 2015 (when she was

between 10 and 11 years old) prior to sexually assaulting I.W. After a hearing, the trial court

determined that the incidents involving A.S. were “close in proximity” and were “sufficiently

similar” to the incident involving I.W. We will not reverse the decision of the trial court to admit

evidence of other crimes absent an abuse of discretion.

¶ 24 Defendant contends that A.S. did not testify to “a concrete – or even a general – time

range” for defendant’s prior assault. However, in cases where the victim of the charged offense

is not able to remember exact dates and times, this inability “merely affects the weight to be

given the testimony and, taken alone, does not create reasonable doubt.” People v. Foley, 206 Ill.

App. 3d 709, 715 (1990) We find that A.S.’s testimony that defendant assaulted her while he was

living with her family in Riverdale provided a sufficient timeframe for the admission of this

evidence.

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¶ 25 Defendant also argues that the court erred in its application of the statutorily mandated

balancing test. He asserts that defendant’s assaults of I.W. and A.S. shared only “general

similarities” and, therefore, the prejudicial impact of the other-crimes evidence “far outweighed”

any probative value.

¶ 26 As set forth above, section 5/115-7.3(c) of the Code requires a court to consider the

proximity in time of the two offenses, the degrees of factual similarities between the two

offenses, and any other relevant facts and circumstances. 725 ILCS 5/115-7.3(c). While the

offenses need not be factually identical, “as factual similarities increase, so does the relevance, or

probative value, of the other-crimes evidence.” Donoho, 204 Ill. 2d at 184. Where the other-

crimes evidence is not being offered under the modus operandi exception, “‘mere general areas

of similarity will suffice’ to support admissibility.” Id. (quoting People v. Illgen, 145 Ill. 2d 353,

370 (1991)). The existence of some differences between the offenses does not defeat

admissibility. Id. at 185.

¶ 27 In this case, other-crimes evidence was admitted to establish propensity, not modus

operandi. Therefore, the relevant inquiry is whether the two offenses shared general areas of

similarity. Defendant’s reliance on cases where other crimes evidence was admitted to prove

modus operandi in which “a high degree of similarity” is required is misplaced. People v. Allen,

335 Ill. App. 3d 773, 776 (2002); see also People v. Johnson, 406 Ill. App. 3d 805, 811 (2010)

(rejecting the defendant’s contention that the general similarities between two sexual assaults

were insufficient because the other-crimes evidence was not being offered under the modus

operandi exception).

¶ 28 Initially, we note that both crimes occurred within a relatively short time period. See

Donoho, 204 Ill. 2d at 184 (finding that the 12 to 15 year gap in time between the other-crimes

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evidence and the charged offense was insufficient, by itself, to render the admission of the other-

crimes evidence an abuse of discretion). Furthermore, A.S. and I.W. were both stepdaughters of

the defendant and of a similar age at the time of the offenses. Both victims were living with

defendant at the time of the assaults and thought of him as a father figure. Defendant approached

both victims while they were alone together at the family home (aside from an infant in I.W.’s

case). Defendant touched both victims in the vaginal area with his hand.

¶ 29 Considered as a whole, we find the two offenses shared sufficient similarities to be

admitted as propensity evidence. In determining that admitting the other-crimes evidence was

not an abuse of discretion, we acknowledge that the two offenses were not identical, most

notably because defendant touched I.W.’s vagina and anus under her clothing while he touched

A.S.’s vagina over the clothing. However, as discussed herein, the existence of some factual

disparities does not render the other-crimes evidence inadmissible. See People v. Cerda, 2014 IL

App (1st) 120484, ¶ 190 (recognizing that the existences of some factual disparities between the

other crime and charged offense does not defeat the admissibility of other-crimes evidence).

¶ 30 Required Jury Instruction

¶ 31 Defendant next argues that he was denied a fair trial where the trial court failed to instruct

the jury using IPI Criminal No. 11.66 as required by section 115-10(c) of the Code. He admits he

forfeited this claim by failing to object at trial or in a posttrial motion, but seeks review under

principles of plain error. Alternatively, he argues that defense counsel was ineffective for failing

to offer the instruction or object to the court’s failure to give the instruction.

¶ 32 Section 115-10 allows the admission of hearsay statements in prosecutions for a sexual

act committed upon or against a child under the age of 13. Subsection (c) provides that, if the

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trial court admits a hearsay statement pursuant to this exception, the trial court must specifically

instruct the jury that:

“[I]t is for the jury to determine the weight and credibility to be given the statement and

that, in making the determination, it shall consider the age and maturity of the child, ***

the nature of the statement, the circumstances under which the statement was made, and

any other relevant factor.” 725 ICLS 5/115-10(c).

IPI Criminal No. 11.66 was designed to implement the instruction required by section 115-10(c).

See IPI Criminal No. 11.66 (committee note); People v. Bryant, 391 Ill. App. 3d 1072, 1084

(2009).

¶ 33 The parties agree that IPI Criminal No. 11.66 was required in this case, that it was not

given, that defense counsel failed to ask for it, that the failure to instruct the jury with IPI

Criminal No. 11.66 was error, and that defendant failed to preserve the error. The only dispute

between the parties on this issue is whether plain error review is appropriate.

¶ 34 Appellate review of jury instructions is governed by Supreme Court Rules 366(b)(2)(i)

and 451(c). Ill. Sup. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994); Ill. Sup. Ct. R. 451(c) (eff. July 1,

2006). Rule 366(b)(2)(i) provides that “No party may raise on appeal the failure to give an

instruction unless the party shall have tendered it.” Additionally, our supreme court has held that

“a defendant will be deemed to have procedurally defaulted his right to obtain review of any

supposed jury instruction error if he failed to object to the instruction or offer an alternative at

trial and did not raise the issue in a posttrial motion.” People v. Sargent, 239 Ill. 2d 166, 188-89

(2010).

¶ 35 Supreme Court Rule 451(c) “fashions a limited exception to the general rule to correct

‘grave errors and errors in cases so factually close that fundamental fairness requires that the jury

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be properly instructed.’” People v. Piatkowski, 225 Ill. 2d 551, 564 (2007) (quoting People v.

Herron, 215 Ill. 2d 167, 175 (2009)). Rule 451(c) provides, in relevant part: “‘substantial

defects’ in criminal jury instructions ‘are not waived by failure to make timely objections thereto

if the interests of justice require.’” Id. (quoting Rule 451(c)). Our supreme court has held that

Rule 451(c) is “coextensive” with the plain error rule, and that “the two rules are construed

identically.” Id.

¶ 36 The plain error rule permits a reviewing court to consider an unpreserved error when a

clear or obvious error occurred and either (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) “that 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.” Id. at

565. Under either prong, the burden of persuasion rests with the defendant. Sargent, 239 Ill. 2d at

190.

¶ 37 The parties agree that the failure to properly instruct the jury in accordance with section

115-10(c) was clear and obvious error. Defendant is not seeking second prong plain error review.

See id. at 192 (rejecting second prong plain error review under similar circumstances where the

jury was instructed on judging believability of witnesses pursuant to IPI Criminal No. 1.02).

Therefore, the issue in this case is whether the first prong of the plain error test is met such that

we may review the unpreserved error. Defendant argues that the evidence was closely balanced

because he “credibly denied I.W.’s claims” at trial and “the physical evidence presented, at best,

conflicted evidence of [his] guilt.”

¶ 38 We disagree and find the evidence in this case was not closely balanced. As previously

noted, I.W. made immediate outcries to S.S. and Nurse Kelleher which were largely corroborated

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by her subsequent videorecorded VSI and the presence of defendant’s DNA on the front panel

and crotch area of I.W.’s underwear. Further, the testimony of A.S. was properly admitted as

propensity evidence. Accordingly, we find that the failure to give IPI Criminal No. 11.66 did not

threaten “to tip the scales of justice” against defendant, and first prong plain error does not apply.

Piatkowski, 225 Ill. 2d at 565.

¶ 39 Defendant alternatively argues that his trial counsel was constitutionally ineffective for

failing to request IPI Criminal No. 11.66 or object to the failure to give the instruction. A

reviewing court’s analysis of prejudice under Strickland is similar to its analysis under first

prong plain error. See People v. Johnson, 218 Ill. 2d 125, 143-44 (2005). Having determined that

the evidence is not closely balanced and that defendant is not entitled to first-prong plain error

review, we similarly find that defendant cannot satisfy the requisite prejudice under Strickland.

In other words, there is no reasonable probability that the outcome of the trial would have been

different if the jury had been properly instructed with IPI Criminal No. 11.66.

¶ 40 In reaching this determination, we note that the jury was “not left without direction

regarding how it was to approach the victim’s statements.” Sargent, 239 Ill. 2d at 192. Among

the instructions it received was:

“Only you are the judges of believability of the witnesses and of the weight to be given to

the testimony of each of them. In considering the testimony of any witness, you may take

into account his ability and opportunity to observe, his age, his memory, his manner

while testifying, any interest, bias or prejudice he may have and the reasonableness of his

testimony considered in the light of all the evidence in the case.”

¶ 41 While the language of these two instructions is not identical, “they convey similar

principles regarding the jury’s role in assessing witness credibility and the various criteria jurors

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may consider when making that assessment.” Id. at 192. The jury in this case was specifically

instructed to consider the victim’s age. Furthermore, “the directive for the jury to take into

account the nature of the statement, or the circumstances under which the statement was made,

seems implicit in the instruction it did receive to ‘take into account [the witness’s] ability and

opportunity to observe *** and the reasonableness of his testimony considered in the light of all

of the evidence in the case.’” Id. We find that defendant has not established that there is a

reasonable probability that, but for counsel’s failure to tender the proper jury instruction, the trial

result would have been different.

¶ 42 Constitutional Challenge to SORA

¶ 43 Finally, defendant challenges the constitutionality of SORA, arguing that that it

establishes “significant disabilities and restraints that touch on nearly every aspect of registrants’

lives,” and therefore violates substantive and procedural due process because the statute does not

allow for consideration of individual characteristics or risks of reoffending.

¶ 44 Conversely, the State argues that this court lacks jurisdiction to consider defendant’s

constitutional challenges to SORA. Citing the Illinois Supreme Court’s decision in People v.

Bingham, 2018 IL 122008, the State argues that defendant “cannot raise a constitutional

challenge to the Illinois Sex Offender Registration Act on direct appeal from his criminal

conviction which triggered its application.”

¶ 45 In Bingham, the defendant was convicted of attempted criminal sexual assault in 1983.

2018 IL 122008, ¶ 1. He was not required to register as a sex offender at the time of his

conviction but subsequent amendments to SORA imposed a registration requirement upon him

when he was convicted of theft in 2014. Id. The defendant argued that the requirements

particular to sex offenders, such as registration, were unconstitutional as applied to him on

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substantive due process grounds. Id. ¶¶ 2, 14. In response, the State asserted that a reviewing

court did not have the power on direct appeal to order that a defendant be relieved of the

requirement when it was not imposed by the trial court. Id. ¶ 15.

¶ 46 Ultimately, our supreme court found that it lacked jurisdiction to resolve the defendant’s

constitutional claim. Id. ¶ 25. The court explained that the trial court “did not impose these

restrictions as part of its sentence. Instead, these laws automatically applied to defendant, no

matter the trial court’s sentence.” Id. ¶ 20. The court further explained, “Sex offender registration

is a matter controlled by statute and was not a requirement imposed by the trial court in this case,

and thus it is not reflected in the trial court’s judgment.” Id. Thus, the registration requirement

was a “collateral consequence,” or an “effect upon a defendant that the circuit court has no

authority to impose, and it results from an action that may or may not be taken by an agency that

the trial court does not control.” Id. ¶ 10, n.1.

¶ 47 The court concluded that “a reviewing court has no power on direct appeal of a criminal

conviction to order that defendant be relieved of the obligation to register as a sex offender when

there is neither an obligation to register imposed by the trial court nor an order or conviction that

the defendant is appealing that is directly related to the obligation or failure to register. Id. ¶ 18.

To allow defendants to challenge collateral consequences of a conviction—not only sex offender

registration but the loss of the right of a felon to vote or possess firearms, for example—on direct

appeal “would place a reviewing court in the position of ruling on the validity (or resolving the

details) of regulatory programs administered by state agencies and officials that are not parties to

the action.” Id. ¶ 19.

¶ 48 While the supreme court ultimately dismissed the defendant’s constitutional challenge, it

also suggested that in the future, constitutional challenges to SORA could be mounted in two

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possible ways: “(1) through a direct appeal from a case finding a defendant guilty of violating the

regulation he attempts to challenge as unconstitutional, such as the sex offender registration law

[citation], or (2) by filing a civil suit seeking a declaration of unconstitutionality and relief from

the classification as well as the burdens of sex offender registration.” Id. ¶ 21. Put simply,

defendant does not follow either suggested avenue for relief in this case.

¶ 49 We conclude that defendant’s constitutional challenge to SORA is foreclosed by

Bingham. Like Bingham, this case is a direct appeal from a criminal conviction in which

defendant challenges the constitutionality of SORA. Defendant’s conviction and sentence related

to his assault of I.W. and not his failure to register as a sex offender. Defendant’s obligation to

register will arise upon his release from imprisonment by operation of law. See 730 ILCS

150/3(c)(4) (West 2018). This obligation was not a requirement imposed by the trial court, but

rather a collateral consequence of his conviction and status as a sex offender. This case falls

squarely under the holding in Bingham, and we must dismiss defendant’s claim accordingly.

¶ 50 In doing so, we reject defendant’s claim that Bingham applies only to as-applied

challenges. This argument has been considered and rejected before. See, e.g., People v. Wells,

2019 IL App (1st) 163247, appeal denied, No. 125194 (Nov. 26, 2019) (Table). Defendant offers

no reason to depart from existing precedent.

¶ 51 Defendant also argues that Bingham is inapposite and contends that we have jurisdiction

to hear his constitutional claim in accordance with People v. Rodriguez, 2019 IL App (1st)

151938-B. In Rodriguez, we acknowledged Bingham but found the defendant could raise his

SORA challenges on direct appeal because the trial court explicitly ordered him “to register

under SORA within three days (and it was this order from which [the defendant] appealed).” Id.

¶¶ 10, 37. In this case, the trial court merely advised defendant, “[Y]ou will have to register as a

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sex offender upon your release,” pursuant to the applicable statute. We disagree with defendant

that registration was a “mandatory component of his sentence.” Rather, registration was a

collateral consequence of his conviction. Rodriguez is inapplicable and we dismiss defendant’s

constitutional challenges to SORA for lack of jurisdiction.

¶ 52 CONCLUSION

¶ 53 For the reasons stated, we dismiss the portion of defendant’s appeal challenging the

constitutionality of SORA. We affirm defendant’s conviction for predatory criminal sexual

assault in all other respects.

¶ 54 Appeal dismissed in part; affirmed.

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