People v. Tetter

2018 IL App (3d) 150243

Opinion

2018 IL App (3d) 150243

Opinion filed January 31, 2018

Modified Upon Denial of Rehearing July 20, 2018

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0243 v. ) Circuit No. 13-CF-291

)

KYLE J. TETTER, )

) Honorable Kathy Bradshaw-Elliott, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

Justice Lytton concurred in the judgment and opinion.

Justice Wright concurred in part and dissented in part, with opinion.

OPINION

¶1 Defendant, age 21 at the time, began a relationship with S.K. who represented herself to

be 18. A jury found that defendant continued this relationship after learning S.K. was 16 and

convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)). After

his conviction, the trial court sentenced defendant to 180 days in county jail, 4 years’ sex

offender probation, and mandatory lifetime sex offender registration.

¶2 On appeal, defendant seeks a new trial; he alleges the trial court erred in admitting and

publishing a voicemail recording during defendant’s cross-examination. Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender

Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community

Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and

presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS

5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720

ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o)

(West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­

101 (West 2012)) impose disproportionate punishment as applied to him. We refer to these

statutes collectively as “sex offender statutes” herein.

¶3 We affirm the trial court’s evidentiary ruling regarding the voicemail recording.

However, we find that defendant’s lifetime subjection to the sex offender statutes constitutes

grossly disproportionate punishment as applied to him. The facts underlying defendant’s

conviction do not suggest that he is a dangerous sexual predator who must be banned from areas

near schools or public parks, or who must be monitored by law enforcement authorities and

presented to the public as a dangerous sexual predator.

¶4 FACTS

¶5 On July 12, 2013, the State charged defendant with aggravated criminal sexual abuse, a

Class 2 felony (720 ILCS 5/11-1.60(d) (West 2012)). On October 4, 2013, defendant pled guilty

in exchange for four years’ sex offender probation and no jail time. On November 1, defendant

submitted a motion to withdraw his guilty plea; he alleged that he did not know pleading guilty

meant he would be subjected to the sex offender statutes’ registration requirements and

restrictions for life. Defendant’s motion also alleged an affirmative defense—he reasonably

believed S.K. to be 18 each time they had sex. The trial court granted defendant’s motion on

December 20. Defendant’s trial began on January 13, 2015.

¶6 Sixteen-year-old S.K. testified that she registered for a social networking website called

“MeetMe” sometime after July 2012. S.K.’s MeetMe profile represented to other users that she

was 18. Defendant was 21 when she “met” him on MeetMe.

¶7 Defendant and S.K. also communicated through another online application called “Kik.”

They met in person for the first time in November 2012. Defendant picked S.K. up at her high

school and took her home. Defendant asked S.K. to be his girlfriend, and she agreed.

¶8 They began having consensual sex in defendant’s car after a few meetings in November

2012. Although she could not remember the date, S.K. testified that she and defendant had sex

once at her house when her parents were away; she did not consent to this sexual encounter.

¶9 Sometime in January or February 2013, S.K. left defendant a voicemail wherein she

referred to herself as “a stupid 16-year-old.” She left the voicemail after learning that defendant

still communicated with his ex-fiancée. S.K. testified that defendant responded to this voicemail

with a text message, but she could not recall the substance of the message.

¶ 10 On March 26, 2013, S.K. ran away from home. She testified that she argued with her

parents about photographs on her phone that she sent to defendant. Her parents confiscated her

phone, and her mother told her to leave the house. S.K. then called defendant from Kmart to tell

him she ran away. Police picked her up from the Kmart after she spoke with defendant.

¶ 11 S.K. stated she and defendant had sex several times between March 26 and late April

2013. On June 8, 2013, an ultrasound confirmed that S.K. was approximately two months

pregnant. When she informed defendant that she was pregnant, he asked her to choose him or the

baby—her daughter was born December 31, 2013.

¶ 12 S.K.’s mother testified that she learned defendant was 21 after S.K. began meeting with

him in November 2012. S.K.’s parents did not want her dating until she turned 18 and forbade

her from having a relationship with defendant.

¶ 13 In December 2012, S.K.’s mother accompanied her to a local mall where she rang bells

for the Salvation Army. When defendant arrived to see S.K., her mother confronted him. She

informed defendant that her daughter was 16 and threatened to “ruin” him if he touched her.

S.K.’s mother reported defendant to the police soon after learning S.K. was pregnant in June

2013.

¶ 14 Detective Robert Mason testified that he arrested defendant on July 2, 2013. Defendant

voluntarily turned over his cell phone and agreed to videotape his interview at the police station.

Mason sent defendant’s cell phone to the United States Secret Service Chicago Electronic

Crimes Division (Secret Service) for forensic analysis. The Secret Service provided Mason with

a thumb drive containing the evidence from defendant’s phone. The trial court admitted the

thumb drive into evidence, and the jury viewed defendant’s videotaped interview.

¶ 15 During the interview, defendant stated that he believed S.K. was 18 based upon her

MeetMe profile representation. He denied ever picking S.K. up from school; he claimed that they

always met at a Subway restaurant. Defendant estimated that he and S.K. had sex approximately

five or six times—always consensual and never at her house. He admitted to having sex with

S.K. once after he learned that she was 16.

¶ 16 At trial, defendant testified on his own behalf. He stated that he lied about having sex

with S.K. after learning her age during the police interview because he was scared and

disoriented. He claimed that he never knew S.K. was 16 until he spoke with police on March 26,

2013. He never had sex with S.K. thereafter.

¶ 17 During cross-examination, the State played the February 2013 voicemail recording in

which S.K. referred to herself as “a stupid 16-year-old.” Defendant objected to the recording; he

alleged the State failed to establish proper foundation. The State pointed out that S.K. testified

during the prosecution’s case-in-chief that she left the voicemail on defendant’s phone. The State

also assured the trial court that S.K. and Detective Mason would provide additional foundation

on rebuttal. The trial court allowed the State to play the recording.

¶ 18 S.K. and Detective Mason testified during the prosecution’s rebuttal. S.K. heard the

recording during defendant’s cross-examination; she identified her voice and confirmed that the

recording accurately portrayed the voicemail she left on defendant’s phone. She stated that she

left the voicemail after an orchestra concert in February 2013. Although Mason identified the

Secret Service thumb drive, he could not identify the Secret Service’s methods used to extract

defendant’s cell phone information or verify the thumb drive’s contents.

¶ 19 At the close of evidence, defense counsel moved for a mistrial. He alleged that the State

failed to establish adequate foundation for the voicemail before or after playing it during

defendant’s cross-examination. Although S.K. identified her voice and verified that she left the

voicemail on defendant’s phone, defense counsel argued that the State failed to prove that the

information on the thumb drive, including the voicemail, came from defendant’s phone. The trial

court denied the motion. The jury found defendant guilty.

¶ 20 At the sentencing hearing, the trial court heard and denied defendant’s posttrial motion.

Defendant’s presentence report showed that he had no prior criminal convictions, other than

minor traffic violations. The presentence report also contained defendant’s sex offender

psychological evaluation. The Kankakee County court referred defendant to Dr. Simone, a

licensed clinical psychologist, for the evaluation. Simone determined that defendant presented a

low risk to reoffend and recommended outpatient sex offender counseling. During the

evaluation, defendant placed in the zero percentile (virtually no risk) on the child molestation

scale, drug use scale, and alcoholism scale.

¶ 21 The trial court sentenced defendant to 180 days in county jail, 4 years’ sex offender

probation, and lifetime subjection to the sex offender statutes’ registration and restrictions. After

sentencing, defendant asked the trial court to prepare a notice of appeal and to appoint appellate

counsel; the court agreed. Due to an administrative error, the deputy circuit clerk filed

defendant’s notice of appeal on April 13, 2015, well after the filing deadline. The clerk attached

a letter asking this court to allow the late notice. On September 8, 2015, we allowed an agreed

motion to treat the notice as timely and assumed jurisdiction over this appeal.

¶ 22 ANALYSIS

¶ 23 Defendant’s appeal raises two distinct claims and seeks two separate forms of relief.

First, he argues that the trial court abused its discretion by allowing the State to play S.K.’s

voicemail during defendant’s cross-examination. He claims that this error warrants a new trial.

Second, defendant makes an as-applied constitutional challenge against the sex offender statutes.

He argues that the sex offender statutes’ requirements and restrictions, as applied to him,

constitute disproportionate punishment under both the Illinois Constitution and United States

Constitution. We address each issue separately below.

¶ 24 I. Authentication of the Voicemail Recording

¶ 25 Defendant asserts that he was denied a fair trial when the trial court allowed the State to

play S.K.’s voicemail during his cross-examination. He argues the State failed to establish proper

foundation before or after playing the recording. Defendant claims the State needed to present

independent evidence to prove the thumb drive’s contents, including the voicemail, came from

his phone.

¶ 26 The jury’s verdict hinged on whether defendant reasonably believed S.K. was 18 during

each sexual encounter. Conflicting testimony rendered witnesses’ credibility key to this issue.

Defendant claims that the court’s erroneous admission and publication of the voicemail unfairly

influenced the jury’s verdict and tainted the trial.

¶ 27 The State argues that S.K.’s testimony established sufficient foundation for the voicemail

when she identified her voice in the recording and testified that the recording was the voicemail

she left on defendant’s phone in February 2013. In the alternative, the State argues that any error

was harmless. According to the State, other evidence and testimony proved defendant either

knew S.K. was 16 prior to March 26, 2013, or had sex with her thereafter.

¶ 28 The trial court exercises its sound discretion in admitting evidence; the court’s judgment

will not be reversed absent an abuse of this discretion. People v. Taylor, 2011 IL 110067, ¶ 27. A

trial court abuses its discretion when its judgment is “fanciful, unreasonable or when no

reasonable person would adopt the trial court’s view.” Id.

¶ 29 As with any evidence, the party seeking admission of an audiotape must establish an

adequate foundation. People v. Williams, 109 Ill. 2d 327, 338 (1985). The party establishes

sufficient foundation when “a witness to the conversation recorded on the tape *** testifies that

the tape, as it exists in court, accurately portrays the conversation in question.” Id.; see also

People v. Johnson, 2016 IL App (4th) 150004, ¶¶ 66-67. The Illinois Rules of Evidence state that

evidence is authenticated where a witness with knowledge testifies that “a matter is what it is

claimed to be.” Ill. R. Evid. 901(b)(1) (eff. Jan. 1, 2011).

¶ 30 If no witness with personal knowledge is available, parties may authenticate recordings

under the silent witness theory “if there is sufficient proof of the reliability of the process that

produced the photograph or videotape.” People v. Vaden, 336 Ill. App. 3d 893, 898 (2003). This

method of authentication is available only when no party to the conversation testifies to the

accuracy of the recording.

¶ 31 The crux of defendant’s argument is “that there was no evidence that the recording was

actually retrieved from defendant’s phone.” He argues that the State could not establish “who

recorded the message, when it was recorded, where it was recorded, or what was done with the

recording since it was made. *** For all we know, the recording was made of [S.K.’s] voice the

day before trial began.”

¶ 32 This argument champions the standard used under the silent witness theory. However,

S.K. testified that the recording accurately reproduced the message she left on defendant’s

phone:

“Q. [S.K.], you were in the courtroom when I played an audio

recording, is that correct?

A. Yes, ma’am.

Q. Did you recognize that audio recording?

A. Yes.

Q. And what did you recognize that to be?

A. It was a conversation that me and [defendant] had via text that

was an argument. He stopped responding to me so I had called him.

Q. Okay. So what we heard was—who was the voice on the

recording that we heard?

A. Me.

Q. Okay. And did you tell that directly to [defendant] or what

did—how did that message get to [defendant]?

A. I just had called his cell phone and had left the message. It was

directly—it was directed towards him.

Q. Okay. But it was on his voicemail?

A. Yes ma’am.

Q. Okay. And do you have any indication from [defendant] that he

ever listened to it?

A. He had responded shortly thereafter via text.

***

Q. And do you recall when that conversation was—or when that

voicemail was that you left him?

A. It would have been in February. I believe it was shortly after

like an orchestra concert I had had and he was talking about the fact that

his ex-fiancée had made a Facebook post regarding the fact that he had

come to a high school orchestra.

Q. Okay. And that would be—that would have been February of

what year?

A. Of 2013.”

¶ 33 This testimony established adequate foundation for the recording. S.K. identified her own

voice and stated that she left the voicemail on defendant’s phone in February 2013. Defense

counsel was free to challenge the thumb drive’s source or S.K.’s credibility, but such

impeachment would attack the voicemail’s evidentiary weight, not its admissibility. Once S.K.

identified her voice and provided context to the recording, it was admissible.

¶ 34 We hold that the trial court did not abuse its discretion by allowing the State to play the

recording during defendant’s cross-examination. We need not address the State’s alternative

harmless error argument. However, we note that during his police interview, defendant admitted

that he had sex with S.K. once after learning her age. S.K. and her mother also testified that

defendant knew S.K.’s age as early as December 2012. The State did not rely solely on the

voicemail to prove defendant’s guilt.

¶ 35 II. Constitutionality of Illinois Sex Offender Statutes as Applied to Defendant

¶ 36 Before addressing this claim’s merits, we must address the State’s position that defendant

forfeited the claim when he failed to raise it with the trial court. Constitutional challenges may be

raised at any time, including for the first time on appeal. People v. McCarty, 223 Ill. 2d 109, 123

(2006); In re J.W., 204 Ill. 2d 50, 61-62 (2003). The State argues that as-applied constitutional

challenges may not be raised on appeal absent an evidentiary hearing in the trial court. However,

a panel of this court has held, as have several of our sister appellate districts, that as-applied

constitutional challenges are not forfeited when defendants fail to raise them at trial or in a

posttrial motion. People v. Cleary, 2013 IL App (3d) 110610, ¶ 35; People v. Burnett, 2015 IL

App (1st) 133610, ¶¶ 81-82; People v. Emmett, 264 Ill. App. 3d 296, 297 (1994).

¶ 37 The State mistakenly relies upon Reno v. Flores, 507 U.S. 292 (1993). In Flores, the

Immigration and Naturalization Service (INS) regulation at issue (8 C.F.R. § 242.24 (1992)) did

not exist when the class filed the lawsuit; the regulation’s effect lasted one week before the

district court deemed it unconstitutional. The Court observed that the class could present only a

facial challenge, not an as-applied one: “We have before us no findings of fact, indeed no record,

concerning the INS’s interpretation of the regulation or the history of its enforcement. We have

only the regulation itself and the statement of basis and purpose that accompanied its

promulgation.” Flores, 507 U.S. at 300-01. Flores does not require trial courts nationwide to

hear and make fact findings for every as-applied constitutional challenge to avoid forfeiture. The

Court’s opinion merely recognizes that such challenges must be supported by the record. Here,

defendant’s challenge addresses statutes that apply to him by virtue of his conviction. The

appellate record includes trial evidence, the presentence investigation, his sex offender

evaluation, the parties’ pleadings, and trial transcripts. This record provides sufficient basis to

review defendant’s challenge. We now turn to the merits.

¶ 38 Defendant asserts that his subjection to the sex offender statutes violates the United

States Constitution’s prohibition against cruel and unusual punishment (U.S. Const., amend.

VIII) and the Illinois Constitution’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11)

as applied to him. A panel of this court recently held banning sex offenders from public parks

(720 ILCS 5/11-9.4-1 (West 2012)) to be facially unconstitutional. People v. Pepitone, 2017 IL

App (3d) 140627. The majority held that the statute was not rationally related to its legislative

purpose, protecting the public from dangerous sexual predators. Id. ¶ 24. Although its

constitutionality is not dispositive to the issue presented here, the public parks statute is relevant

to defendant’s challenge. Our supreme court has not yet decided Pepitone. For purposes of this

appeal, we assume the statute is facially constitutional.

¶ 39 Like with the Illinois Constitution’s proportionate penalties clause, “[t]he concept of

proportionality is central to the Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010).

“Embodied in the Constitution’s ban on cruel and unusual punishments is the ‘precept of justice

that punishment for crime should be graduated and proportioned to [the] offense.’ ” Id. (quoting

Weems v. United States, 217 U.S. 349, 367 (1910)). To constitute disproportionate punishment,

however, defendant’s subjection to the sex offender statutes must constitute punishment under

the law.

¶ 40 A. Whether Sex Offender Statutes Constitute Punishment

¶ 41 Our first question is whether the sex offender statutes are punitive or regulatory. Smith v.

Doe, 538 U.S. 84, 92 (2003); In re Rodney H., 223 Ill. 2d 510, 518 (2006). Courts employ a two-

step framework to determine whether a statutory scheme is punitive. The first step “ascertain[s]

whether the legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks,

521 U.S. 346, 361 (1997). If the legislature intended to impose punishment, then the second step

is unnecessary. However, if the legislature intended to enact a civil regulatory scheme, the

second step determines whether the scheme is “ ‘so punitive either in purpose or effect as to

negate [the State’s] intention’ to deem it ‘civil.’ ” Id. (quoting United States v. Ward, 448 U.S.

242, 248-49 (1980)).

¶ 42 During the second step’s analysis, courts use as “useful guideposts” the factors set forth

in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). See Hudson v. United States,

522 U.S. 93, 99 (1997). The Mendoza-Martinez factors relevant to the sex offender statutes are

(1) whether the sanction involves affirmative disability or restraint, (2) whether it has been

historically regarded as punishment, (3) whether its operation will promote the traditional aims

of punishment, (4) whether the sanction is rationally related to an alternative, nonpunitive

purpose, and (5) whether it appears excessive in relation to the alternative, nonpunitive purpose.

Mendoza-Martinez, 372 U.S. at 168-69; Smith, 538 U.S. at 97.

¶ 43 Our supreme court previously determined that the sex offender statutes do not constitute

punishment. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 206-07 (2009); People v.

Malchow, 193 Ill. 2d 413, 424 (2000). Konetski addressed juvenile sex offender registration

requirements, which allow juvenile offenders to petition for removal after five years—here,

defendant has no such right. In Malchow, the court held that the Notification Law, as it existed in

1998, placed no affirmative disability or restraint on sex offenders; their movements and

activities were in no way restricted. Malchow, 193 Ill. 2d at 421. The court also noted that

SORA’s requirements terminated for “most offenders” after 10 years. Id. at 424. The court

concluded that “the legislature has [not] chosen excessive measures to implement its goal of

protecting the public from sex offenders.” Id.

¶ 44 After Malchow, the United States Supreme Court held that Alaska’s Sex Offender

Registration Act (Alaska’s SORA) (Alaska Stat. § 12.63.010 et seq. (2000)) did not constitute

punishment in Smith v. Doe. The Smith majority found that Alaska’s SORA merely disseminated

“accurate information about a criminal record, most of which [was] already public.” Smith, 538

U.S. at 98. The Court disagreed with the appellate court’s opinion that Alaska’s SORA equated

to probation or parole, although the majority acknowledged that the argument had “some force.”

Id. at 101. The majority reasoned:

“Probation and supervised release entail a series of mandatory

conditions and allow the supervising officer to seek the revocation

of probation or release in case of infraction. [Citations.] By

contrast, offenders subject to the Alaska statute are free to move

where they wish and to live and work as other citizens, with no

supervision.” (Emphasis added.) Id.

¶ 45 Our legislature subsequently passed numerous amendments imposing additional

requirements and restrictions upon sex offenders. Most importantly, it imposed specific

restrictions on where sex offenders may be present or live. See 720 ILCS 5/11-9.3, 11-9.4-1

(West 2012). Sex offenders cannot have jobs where they work, at any time for any reason, within

500 feet of a school or public park or within 100 feet of a school bus stop. Id. SORA also

effectively bars offenders from working any job requiring extensive travel; sex offenders must

notify, in person, both Illinois law enforcement and the destination’s law enforcement when they

are away from home for three or more days. 730 ILCS 150/3(a) (West 2012). The amendments

since Malchow “directly restrict where [a sex offender] can live, work, and even move about his

community.” People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 51. Thus, we are faced with

very different and more restrictive statutes than those addressed in Malchow or Smith.

¶ 46 In Malchow, our supreme court held that the Notification Law, on its face, reflects the

legislature’s intention to create a civil regulatory scheme that protects the public rather than a

punitive scheme. Malchow, 193 Ill. 2d at 420; see also Hendricks, 521 U.S. at 361. However,

since the legislature enacted sex offender statutes that restrict a convicted sex offender’s

presence, residence, and liberty to move about society, the court has not addressed whether the

sex offender statutes’ punitive effects negate the legislature’s intent to deem the laws civil. See

Hendricks, 521 U.S. at 361. For the reasons stated below, we find that they do.

¶ 47 1. Affirmative Disability or Restraint

¶ 48 Both Malchow and Smith found that the 1998 Illinois Notification Law and Alaska’s

SORA, respectively, did not affirmatively disable or restrain offenders because they were free to

live, work, and move about the community without restriction. Since Malchow and Smith,

amendments to the sex offender statutes have stripped this freedom of movement from Illinois

offenders. The sex offender statutes are now akin to probation or supervised release. Probation

and other forms of supervised release are considered punishment. Griffin v. Wisconsin, 483 U.S.

868, 874 (1987) (“Probation is simply one point (or, more accurately, one set of points) on a

continuum of possible punishments ranging from solitary confinement in a maximum-security

facility to a few hours of mandatory community service.”).

¶ 49 Non-sex-offender parolees are subject to parole conditions. Parolees must, among other

conditions, not break the law in any jurisdiction; not possess a firearm or dangerous weapon;

report to an agent of the Illinois Department of Corrections (DOC); permit a DOC agent to visit

the parolee at home or place of employment; attend or reside in a facility established for the

instruction or residence of persons on parole or mandatory supervised release (MSR); obtain the

DOC’s permission before leaving the state; obtain permission before changing residence or

employment; consent to searches of the parolee’s person, property, or residence; refrain from

using narcotics and submit to urinalysis testing; not frequent places where controlled substances

are illegally sold or used; not knowingly associate with others on MSR or parole; provide true

and accurate information regarding the parolee’s community integration and adjustment; and

follow the parole agent’s instructions. See 730 ILCS 5/3-3-7(a) (West 2014). Parolees may

additionally be required to work, pursue education or vocational training, undergo treatment for

medical issues or addiction, and/or support the parolee’s dependents. 730 ILCS 5/3-3-7(b) (West

2012).

¶ 50 Sex offenders, like defendant, are subject to dozens of additional parole conditions. See

730 ILCS 5/3-3-7(a)(7.5)-(7.13), (b)(7.5)-(7.6), (b-1) (West 2014). These conditions include sex

offender treatment, not living in the same residential unit (including apartments or

condominiums) with other known sex offenders, wearing an electronic monitoring device, not

communicating with or contacting people on the Internet whom the offender believes to be under

18, consenting to searches of all devices with Internet access, not possessing prescription

medications for erectile dysfunction, not “scrubbing” or erasing data on any computer device,

residing only at an approved location, obtaining approval prior to accepting employment or

pursuing education, not being employed or participating in any volunteer activity involving

contact with children, refraining from entering designated geographic areas without approval,

neither possessing nor having access to pornography or sexually stimulating material, not

patronizing any adult entertainment establishment or telephone hotline, not residing near or

being present in places where minors may congregate without advance approval, taking an

annual polygraph exam, maintaining a travel log, and other restrictions. See id.

¶ 51 After completing sex offender probation, offenders are subject to the sex offender statutes

for either 10 years or life—defendant’s conviction subjects him to lifetime registration. Under

the sex offender statutes, off-parole sex offenders must register with the DOC, inform the DOC

of certain life events (such as buying or using a new car, growing a beard, moving, or taking a

vacation), consent to having Internet usage monitored, and most importantly, not live or be

present near school zones, school bus stops, or public parks. Off-parole sex offenders are more

restricted in many ways than non-sex-offender parolees. While non-sex-offender parolees are

monitored and prohibited from committing crimes, off-parole sex offenders may not reside or be

present near places where the legislature has deemed them more likely to recidivate.

¶ 52 Sex offender statutes restrict where defendant may live, work, or be present, in addition

to the numerous obstacles imposed by the registration requirements. These requirements and

restrictions, collectively, constitute an affirmative disability and restraint—defendant is restricted

in most aspects of his daily life. Specifically, “safe zones” surrounding schools, school bus stops,

and public parks, significantly restrict defendant’s lawful movement within the community.

These zones restrict where he may live, drive, work, visit, or attend any social function for life.

Although not to the same degree as prison, the sex offender statutes’ restrictions affirmatively

disable and restrain offenders such as defendant. Therefore, this factor suggests that the sex

offender statutes constitute punishment.

¶ 53 2. History and Tradition as Punishment

¶ 54 The Smith majority found that Alaska’s SORA did not resemble a historically-recognized

form of punishment—it merely disseminated accurate, already-public information. Smith, 538

U.S. at 97-99. More recently, the Sixth Circuit Court of Appeals has found Michigan’s Sex

Offender Registration (Michigan’s SORA) (Mich. Comp. Laws § 28.723 et seq. (2012)) to meet

“the general definition of punishment, [have] much in common with banishment and public

shaming, and [have] a number of similarities to parole/probation.” Does #1-5 v. Snyder, 834 F.3d

696, 703 (6th Cir. 2016), cert. denied, 583 U.S. ___, 138 S. Ct. 55 (2017). The Snyder court

primarily focused on Michigan’s SORA’s 1000-foot school safety zone restriction; sex offenders

were not allowed to live, work, or “loiter” within 1000 feet of any school. Id. at 698, 702. The

court found this restriction punitive, concluding that it drastically hindered offenders’ ability to

live in or move about society. Id. at 702. The court also found that Michigan’s SORA went far

beyond publishing already-public information, like Alaska’s SORA in Smith. Id. Instead,

Michigan’s SORA set forth a nonappealable “byzantine code” in which “the ignominy *** flows

not only from the past offense, but also from the statute itself.” Id. at 697, 703.

¶ 55 Our current sex offender statutes are more similar to Michigan’s SORA addressed in

Snyder than Alaska’s SORA in Smith or our 1998 Notification Law in Malchow. Arguably, our

current sex offender statutes are more restrictive than Michigan’s SORA deemed punishment in

Snyder. Although Michigan’s SORA imposed larger school safety zones than our sex offender

statutes (1000 feet as opposed to 500 feet), our sex offender statutes impose a 500-foot zone

around public parks and a 100-feet zone around school bus stops that Michigan’s SORA did not

impose. Michigan’s SORA did not “prohibit the registrant from setting foot in the school zones.”

Id. at 701. Our sex offender statutes do. 720 ILCS 5/11-9.3, 11-9.4-1 (West 2012).

¶ 56 Our sex offender statutes satisfy the traditional definition of punishment. Citing published

legal philosophy, the Snyder court defined “punishment” as involving pain or unpleasant

consequences following from an offense against the law, applying to the offender, being

intentionally administered by people other than the offender, and being imposed and

administered by an authority constituted by a legal system against which the offense was

committed. Snyder, 834 F.3d at 701 (citing H.L.A. Hart, Punishment and Responsibility: Essays

in the Philosophy of Law 4-5 (1968)). Our sex offender statutes, like parole or MSR, satisfy this

definition. We find that this factor also suggests that the sex offender statutes constitute

punishment.

¶ 57 3. Traditional Aims of Punishment

¶ 58 The traditional aims of punishment are incapacitation, retribution, and deterrence. Our

legislature implemented the sex offender statutes to deter future sex crimes and protect the

public. If the sex offender statutes are not meant to deter sex crimes, then they do not protect the

public at all. As the Court noted in Smith, however, civil regulations can deter crime: “To hold

that the mere presence of a deterrent purpose renders such sanctions criminal *** would severely

undermine the Government’s ability to engage in effective regulation.” (Internal quotation marks

omitted.) Smith, 538 U.S. at 102. A statute that deters crime is not necessarily punitive.

¶ 59 Our sex offender statutes do not merely deter recidivism; they incapacitate convicted sex

offenders and serve as retribution for sex crimes committed. The sex offender statutes’ residence

and presence restrictions, at work or otherwise, incapacitate sex offenders by banning them from

places where children routinely congregate. Restricting offenders’ liberty of residence and

movement, as well as monitoring their daily lives solely because of certain convictions, emits a

strong scent of retribution, for better or worse. In sum, our sex offender statutes satisfy all three

traditional aims of punishment. We find that this factor suggests that the sex offender statutes

constitute punishment.

¶ 60 4. Rational Relation to a Nonpunitive Purpose and Excessive Application

¶ 61 We assess the final two Mendoza-Martinez factors relevant to sex crimes in tandem.

These factors instruct us to determine whether the sex offender statutes’ restrictions are

rationally related to their nonpunitive purpose of protecting the public and, if so, whether the

application of the sex offender statutes is excessive with respect to serving its nonpunitive

purpose.

¶ 62 Smith held that Alaska’s SORA was rationally related to protecting the public from sex

offenders, a nonpunitive regulatory purpose, primarily due to their high risk of recidivism. Id. at

102-04. The Court cited research on child molesters, which noted a high recidivism rate and

concluded that most offenders reoffend more than a few years after their prison terms, sometimes

as many as 20 years after release. Id. at 104. The Court also found the application of Alaska’s

SORA to be reasonable in light of its nonpunitive objective. Id. at 103-04.

¶ 63 In his concurrence, Justice Souter questioned whether Alaska’s SORA’s excessive

application undermined its nonpunitive purpose. He observed that not all sex offenders threaten

public safety and “when a legislature uses prior convictions to impose burdens that outpace the

law’s stated civil aims, there is room for serious argument that the ulterior purpose is to revisit

past crimes, not prevent future ones.” Id. at 109 (Souter, J., concurring in the judgment).

¶ 64 Here, even if the sex offender statutes are rationally related to a nonpunitive purpose,

their broad application and harsh liberty restrictions extend far beyond the purpose’s purview. To

determine whether a statute’s application is excessive with respect to its nonpunitive purpose,

“[t]he question is whether the regulatory means chosen are reasonable in light of the nonpunitive

objective.” Id. at 105 (majority opinion). In light of its nonpunitive purpose, protecting the public

from dangerous sex offenders, the sex offender statutes’ scope and substance is unreasonably

punitive.

¶ 65 Our sex offender statutes, unlike Alaska’s SORA in Smith, restrict all sex offenders’ (not

just dangerous ones’) liberty of movement in society. Although we must not question “whether

the legislature has made the best choice possible to address the problem it seeks to remedy” (id.),

we must recognize, as did the Smith majority, that restricting one’s liberty of movement in the

community is drastically different than disseminating information. See id. at 101.

¶ 66 The sex offender statutes’ broad application also greatly exceeds their nonpunitive

purpose. The Snyder court found that indiscriminate restrictions on sex offenders’ residence or

presence in certain areas have, “at best, no impact on recidivism” because Michigan’s SORA

made “no provision for individualized assessments of proclivities or dangerousness, even though

the danger to children posed by some *** is doubtless far less than that posed by a serial child

molester.” Snyder, 834 F.3d at 705. Likewise, our sex offender statutes’ scope and restrictions

substantially outpace their public safety objective. Illinois individually evaluates sex offenders

(including defendant) to determine their risk to recidivate, yet the application of the sex offender

statutes does not account for these individual evaluations. The trial court referred defendant to a

licensed clinical psychologist for his evaluation. Defendant scored in the zero percentile on the

child molestation, drug abuse, and alcoholism scales. In other words, a clinical psychologist

chosen by the court, not defendant, concluded that he poses no greater risk than any other person

to commit child sex crimes or those involving drug or alcohol abuse. Nonetheless, the sex

offender statutes require defendant to register for life and not set foot near school zones or public

parks where children frequently congregate.

¶ 67 Defendant is simply not the person at whom the sex offender statutes’ purposes are

aimed. Its statutes are not tailored to regulate only dangerous offenders, those likely to

recidivate, or those with little or no potential for rehabilitation; therefore, offenders like

defendant must endure the statutes’ restrictions without society reaping any benefit. These

statutes go well beyond the dissemination of accurate, already-public information and are not

“analogous to a visit to an official archive of criminal records.” Smith, 538 U.S. at 99. We agree

with the trial court’s assessment of defendant’s sentence:

“I can only say his life will never be the same. He will go through

life now as a predator. He will be labeled a predator in every way.

He—it will be very difficult to get a job. He’ll not be able to have a

cell phone, use those apps that he uses or be on the Internet. He

won’t be able to live where he wants to live. He won’t be able to

associate with who he wants to be [sic]. His life will—will never

be the same and—and in effect that is great punishment.”

¶ 68 If the sex offender statutes’ application were not irrevocable, our analysis might be

different. See Konetski, 233 Ill. 2d at 203 (finding that a juvenile offender’s ability to petition for

termination after five years was indicative of a nonpunitive restriction). In a similar case, New

Hampshire’s supreme court fashioned a remedy whereby sex offenders were entitled to periodic

hearings, subject to judicial review, to determine whether they still posed a danger to society.

Doe v. State, 111 A.3d 1077, 1101-02 (N.H. 2015). Such opportunities for sex offenders to be

exonerated from the sex offender statutes’ restrictions better reflect a nonpunitive regulatory

scheme rather than punishment for a crime.

¶ 69 Although the sex offender statutes’ restrictions may present fair and just punishment in

many or most cases, they nonetheless constitute punishment. Most notably, sex offender statutes

punish sex offenders by restricting their liberty to live where they wish and move about the

community. The sex offender statutes’ liberty restrictions fall within the “continuum of possible

punishments ranging from solitary confinement in a maximum-security facility to a few hours of

mandatory community service.” See Griffin, 483 U.S. at 874. Several other states have found

that sex offender registration statutes constitute punishment. See Doe v. Department of Public

Safety & Correctional Services, 62 A.3d 123 (Md. 2013); Gonzalez v. State, 980 N.E.2d 312,

321 (Ind. 2013); Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004;

State v. Letalien, 2009 ME 130, 985 A.2d 4; State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio­

3374, 952 N.E.2d 1108; Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009). We find that the

sex offender statutes constitute punishment as contemplated by the eighth amendment and the

Illinois Constitution’s disproportionate penalties clause. We do not address other potential

constitutional applications or arguments; our holding addresses only the issues raised by

defendant’s as-applied challenge. We now address whether defendant’s punishment is

unconstitutionally disproportionate to his crime.

¶ 70 B. Whether Defendant’s Punishment is Disproportionate

¶ 71 Article I, section 11 of the Illinois Constitution provides, “[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.” Ill. Const. 1970, art. I, § 11. “A proportionality challenge

contends that the penalty in question was not determined according to the seriousness of the

offense ***.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). Our proportionate penalties clause

coincides with the eighth amendment. Id. at 517 (citing People v. McDonald, 168 Ill. 2d 420, 455

(1995)).

¶ 72 The eighth amendment allows defendants to challenge sentences as disproportionate

“given all the circumstances in a particular case.” Graham, 560 U.S. at 59. Courts must consider

“all of the circumstances of the case to determine whether the sentence is unconstitutionally

excessive.” Id. In doing so, courts must be mindful that the eighth amendment contains a

“ narrow proportionality principle, that does not require strict proportionality between crime and

sentence but rather forbids only extreme sentences that are grossly disproportionate to the

crime.’ ” (Internal quotation marks omitted.) Id. at 59-60 (quoting Harmelin v. Michigan, 501

U.S. 957, 997, 1000-01 (1991) (Kennedy, J., concurring in part and concurring in the judgment,

joined by O’Connor and Souter, JJ.)).

¶ 73 The long-recognized eighth amendment proportionality principle applies to all

punishments, including both capital and noncapital sentences. See Coker v. Georgia, 433 U.S.

584, 592 (1977); Rummel v. Estelle, 445 U.S. 263, 271-74 (1980). Although the Court recognizes

that it has not established “a clear or consistent path for courts to follow” (Lockyer v. Andrade,

538 U.S. 63, 72 (2003)), it has remained resolute in its prohibition of grossly disproportionate

punishments. See id. We find that the instant case, as a matter of first impression, lends itself to

the three-factor inquiry set forth in Solem v. Helm, 463 U.S. 277, 290-91 (1983). Particularly

relevant to this case are the first two factors (1) whether the gravity of the offense comports with

the harshness of the penalty and (2) whether “more serious crimes are subject to the same

penalty, or to less serious penalties” as an indication that the punishment is excessive. Id. The

third factor that courts “may find *** useful” (id. at 291), comparing other jurisdictions’

punishments for the same crime, has little or no value in this case; the sex offender statutes’

restrictions and offenders’ prison sentences vary, sometimes dramatically, by state.

¶ 74 First, we must determine the gravity of defendant’s crime in relation to the sex offender

statutes’ restrictions. Certainly, the sex offender statutes’ restrictions are less severe than a prison

sentence; nonetheless, they can be grossly disproportionate, especially viewing them in

correlation with defendant’s jail sentence and sex offender probation term. Defendant also must

bear the sex offender statutes’ restrictions for life. In many ways, these restrictions will prevent

defendant from reestablishing himself in society and permanently impact his life.

¶ 75 To assess the gravity of defendant’s offense, we first turn to the crime’s classification in

the Criminal Code of 2012. Section 11-1.60 renders defendant’s crime a Class 2 felony. 720

ILCS 5/11-1.60(g) (West 2012). Many other sex crimes are more serious Class 1 felonies or

Class X felonies (id. §§ 11-1.20, 11-1.30, 11-1.40). Some others are less serious Class A

misdemeanors or Class 4 felonies (id. § 11-1.50). Class 2 felonies are punishable by three to

seven years’ imprisonment (730 ILCS 5/5-4.5-35 (West 2014)), but the trial court sentenced

defendant to 180 days in jail, 4 years of sex offender probation, and lifetime SORA registration.

Apparently, the court determined that the circumstances underlying defendant’s conviction did

not warrant the statutory minimum; nor did the State seek a writ of mandamus to increase

defendant’s sentence. It seems everyone below agrees that defendant is not sexually dangerous,

to children or anyone else.

¶ 76 We cannot accurately assess a sex crime’s gravity without considering the risk of

recidivism. Recidivism concerns are legitimate considerations in determining whether a sentence

is grossly disproportionate. See Ewing v. California, 538 U.S. 11, 24-28 (2003). In fact, the

purpose of the sex offender statutes’ registration and restrictions nationwide is to limit the risk of

recidivism. Perhaps these concerns are most accurately personified in United States v. Williams,

636 F.3d 1229 (9th Cir. 2011). Williams was convicted of possessing child pornography after

previously sexually assaulting two girls under 13 years old. After his convictions, Williams

worked at a local fair where children would be present; he admitted during his psychological

evaluation that he had sexual fantasies about raping young children. The Ninth Circuit found

Williams’s lifetime of supervised release proportional to his crime due to his high risk of

recidivism and glaring lack of rehabilitation. Id. at 1232-34. We agree with the Ninth Circuit’s

rationale and opinion.

¶ 77 Defendant here is not Williams. Defendant was 21 and initially believed S.K. to be 18,

according to her MeetMe profile—no trial evidence suggested defendant intentionally preyed

upon underage girls. Defendant and S.K. had a relationship. While this relationship resulted in

defendant’s illegal conduct for which he was convicted, these facts share little or no common

ground with Williams or other cases involving violent sex crimes or child molestation. After his

arrest, defendant’s evaluation placed him at virtually zero risk to recidivate. He had no prior

criminal offenses, other than minor traffic tickets. In fact, the trial judge sentenced him to far less

prison time than the minimum Class 2 felony term. The circumstances underlying defendant’s

conviction, along with his evaluation, suggest that his lifetime subjection to the sex offender

statutes’ registration and restrictions, on top of his jail sentence and sex offender probation

period, is grossly disproportionate to the crime for which he was convicted.

¶ 78 Defendant’s argument is further bolstered when we compare his punishment to others in

Illinois. A chasm of culpability and community concern lies between defendant and violent sex

offenders or serial child molesters. Violent sex crimes and child sex crimes are classified as more

serious Class 1 or Class X felonies in Illinois. 720 ILCS 5/11-1.20, 11-1.30, 11-1.40 (West

2012). Nonetheless, defendant is forever restricted as to where he can live, work, and move

about the community, no differently than offenders fitting a far more dangerous criminal profile.

¶ 79 Additionally, the sex offender statutes’ restrictions apply to defendant no differently than

offenders deemed a high risk to recidivate. The State initially offered defendant a plea agreement

in which he would be subject to the sex offender statutes for life but serve no jail time. We hope

that the State does not rely solely upon the sex offender statutes’ restrictions to protect the public

from dangerous sex offenders. We build and maintain prisons to incarcerate dangerous criminals;

we should not delegate public protection to citizens by giving them access to a registry and

wishing them luck. Furthermore, if a sex offender is so potentially dangerous as to require the

sex offender statutes’ restrictions at issue here, we question the wisdom of releasing the offender

at all. We have procedures available under the Sexually Dangerous Persons Act (725 ILCS

205/0.01 et seq. (West 2012)) and Sexually Violent Persons Commitment Act (725 ILCS 207/1

et seq. (West 2012)) to keep dangerous sex offenders where they cannot harm others, including

children.

¶ 80 Given the circumstances of this case, defendant’s background, and his virtually zero risk

to recidivate, we hold that his lifetime subjection to the sex offender statutes is grossly

disproportionate to his crime. As applied to him, lifetime subjection to the sex offender statutes’

registration requirements and restrictions violates the Illinois Constitution’s proportional

penalties clause and the United States Constitution’s eighth amendment.

¶ 81 In its petition for rehearing, the State argues that we should narrowly tailor our decision

and uphold or modify some, if not all, SORA restrictions on defendant. Instead of deeming

SORA’s restrictions unconstitutional as applied to defendant, the State claims (for the first time

in its petition) that we should shorten the term of defendant’s subjection to SORA or determine

the individual restrictions to which defendant may be constitutionally subjected. We reject the

State’s argument and deny its petition. Prior to the petition for rehearing, the State took an “all or

nothing” approach. Parties may not raise arguments for the first time in a petition for rehearing.

Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017); People v. Grigorov, 2017 IL App (1st) 143274, ¶ 23.

The issue presented on appeal was whether SORA’s restrictions, as a whole, constitute

disproportionate punishment as applied to defendant.

¶ 82 CONCLUSION

¶ 83 For the foregoing reasons, we affirm defendant’s conviction, jail sentence, and probation

term. We vacate defendant’s subjection to the sex offender statutes’ registration requirements

and restrictions.

¶ 84 Affirmed in part, reversed in part.

¶ 85 JUSTICE WRIGHT, concurring in part and dissenting in part:

¶ 86 I concur with the resolution of the issues addressed by the majority, with the exception of

the holding regarding the adequacy of this record to address a constitutional challenge and the

majority’s determination that SORA, the Notification Law, and four other challenged sex

offender laws are punitive. I also disagree that these sex offender laws, as applied, are

unconstitutional.

¶ 87 I. Insufficient Record

¶ 88 It is well established that “[A]n as-applied constitutional challenge is dependent on the

particular circumstances and facts of the individual defendant or petitioner. Therefore, it is

paramount that the record be sufficiently developed in terms of those facts and circumstances for

purposes of appellate review.” People v. Thompson, 2015 IL 118151, ¶ 37. Here, the record does

not contain any findings of fact for our consideration. Consequently, I disagree that this court

should make our own findings of fact in order to reach the merits of defendant’s constitutional

challenge to SORA, the Notification Law, and four other sex offender laws. I conclude the

record is insufficient to fairly resolve this constitutional issue.

¶ 89 II. The Punitive Nature of SORA, the Notification Law, and the Sex Offender Laws

¶ 90 Assuming the majority is correct and the record is sufficient to consider defendant’s as-

applied challenge under People v. Cleary, 2013 IL App (3d) 110610, ¶ 35, I cannot concur with

the majority’s hazy holding that SORA, the Notification Law, and other sex offender laws at

issue have become punitive. I note the majority’s holding is directly contrary to existing

precedent from our court. In People v. Grochocki, 343 Ill. App. 3d 664 (2003), after a thorough

analysis, this court held that the Notification Law, as amended after the decision in Malchow, is

not punitive in either legislative purpose or effect. See People v. Malchow, 193 Ill. 2d 413

(2000). More recently, the First District also determined the most recent legislative changes to

SORA, as of 2016, “reflect social changes and do not manifest a punitive bent.” In re A.C., 2016

IL App (1st) 153047, ¶ 77. I agree with the rationale of these two well-reasoned decisions.

¶ 91 In 2013, our supreme court stated, “To begin with, it is worth repeating that sex offender

registration is not punishment.” People v. Cardona, 2013 IL 114076, ¶ 24. Based on this

observation, I conclude well-established precedent from our supreme court should control the

outcome of this appeal. Malchow, 193 Ill. 2d at 424; People ex rel. Birkett v. Konetski, 233 Ill.

2d 185, 207 (2009); In re J.W., 204 Ill. 2d 50, 75 (2003); People v. Adams, 144 Ill. 2d 381, 386­

90 (1991). Therefore, based on this existing precedent, I disagree with the majority’s conclusion

that SORA, the Notification Law, and other sex offender laws at issue are punitive as applied to

defendant.

¶ 92 III. Eighth Amendment and the Proportionate Penalties Clause

¶ 93 I do not share the majority’s conclusions concerning defendant’s challenge based on the

eighth amendment and the proportionate penalties clause of the Illinois Constitution. These

contentions must be resolved by considering objective criteria, including the gravity of the

offense, the harshness of the penalty, and the sentences imposed on other criminals in the same

jurisdiction. Solem v. Helm, 463 U.S. 277, 291-92 (1983). In spite of the majority’s argument, a

proportionality analysis does not require that courts analyze the severity of certain crimes purely

based on their numerical classification. See id.

¶ 94 I am not troubled by the fact that defendant’s conviction for a Class 2 felony subjects this

defendant to the same classifications and obligations as sex offenders convicted of Class 1 or

Class X felonies. I believe defendant’s crime, regardless of its classification, remains

disturbingly serious.

¶ 95 The majority minimizes the seriousness by noting defendant had a “relationship” with the

victim that began when the victim posted her photo on MeetMe, a site restricted to adults only.

These observations seem to unfairly shame or blame the victim and are not persuasive.

Familiarity makes it easier to convince underage victims to cooperate with unlawful sex acts,

making violence unnecessary. The fact that defendant was not a stranger to the victim and did

not violently assault the victim does not diminish the gravity of the offense in my view.

¶ 96 I also disagree with the majority’s statement that defendant’s “lifetime subjection to sex

offender laws is grossly disproportionate to [defendant’s] crime.” Not every act of criminal

sexual abuse will result in the pregnancy of a minor. Certainly, any restrictions or inconvenience

to this defendant, arising from the application of the sex offender laws at issue, pales in

comparison to the life-altering and permanent changes the teenaged victim experienced. Here,

the victim experienced nine months of pregnancy during high school, child birth, and the reality

that she would be responsible for another life for the rest of her life.

¶ 97 Respectfully, I do not find laws that restrict this defendant from working within 500 feet

of a school or public park, or within 100 feet of a school bus stop particularly disproportionate to

this offense. The record does not indicate defendant is a student, will be a student, or has any

reason to be present near a school. I also find it reassuring that this convicted sex offender must

disclose his e-mail addresses, cyber identities, and instant message accounts as part of the

registration requirements set forth in the sex offender laws. These restrictions, and others, will

protect underage targets that defendant might attempt to win over with his sweet-talking,

manipulative, communications in the future.

¶ 98 The requirement that defendant must notify law enforcement when he is away from home

for three or more days does not appear to be burdensome to this defendant. The record does not

contain any information that defendant travels frequently or is away from his residence for days

at a time. Based on this record, I do not agree the regulations and restrictions defendant claims

are unconstitutional in effect actually create any permanent disability for this defendant. He may

still travel about, have a social life, have access to the Internet, find employment, and maintain

appropriate sexual relationships with other adults.

¶ 99 Lastly, due to the paucity of the facts of record directly pertaining to the circumstances of

this defendant, it is impossible for a reviewing court to accurately predict this defendant’s risk to

reoffend. Simply stated, this record does not support the conclusion that defendant is unlikely to

reoffend.

¶ 100 Defendant’s recidivist potential is evident in the circumstances of this offense. Once was

not enough. Here, defendant repeatedly had sexual intercourse with a teenager on multiple

occasions. In my view, defendant has already demonstrated his propensity to repeat the same

criminal acts, again and again.

¶ 101 Respectfully, I observe that defendant’s propensities did not go unnoticed by the trial

court. After viewing defendant’s demeanor during his recorded interview and his trial testimony,

the trial court did not make a finding that defendant was unlikely to reoffend in the future.

Nonetheless, the majority reaches a conclusion that defendant will not reoffend, where the trial

court did not make the same finding based on the same information.

¶ 102 Finally, the sex offender evaluation in this record reveals defendant engaged in “a

purposeful attempt to deceive the examiner.” The evaluator also expressed concerns that

defendant had a “tendency to not disclose information,” and provided “erratic and inconsistent

physiological responses” to several relevant questions. Surely, if defendant was not at risk to

repeat this criminal misconduct, sex offender treatment would not be recommended in this case.

Based on this record, I conclude defendant’s eighth amendment and proportionality challenge

under the Illinois Constitution are meritless because the consequences of his criminal conduct

did not exceed the gravity of this offense.

¶ 103 IV. Summary

¶ 104 To summarize, I dissent because I believe this court should not address the constitutional

issue at this time due to the incomplete record submitted to our court. Next, even if the record is

sufficient to evaluate defendant’s constitutional claim, existing precedent from this court and

other courts, requires our court to conclude that SORA, the Notification Law, and the sex

offender laws are not punitive. Finally, I reject the notion that the punishment defendant received

is disproportionate to the gravity of his crime and conclude the record does not conclusively

establish that this defendant will not reoffend when the opportunity arises.

¶ 105 Consequently, I concur in part and dissent in part.