2020 IL App (1st) 181060-U
THIRD DIVISION December 30, 2020
No. 1-18-1060
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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. 14 CR 5071 ) EDMOND THOMAS, ) Honorable ) Neera Lall Walsh Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
PRESIDING JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court of Cook County summarily dismissing defendant’s postconviction petition is affirmed; defendant failed to make a gist of an arguably constitutional claim of ineffective assistance by appellate counsel.
¶2 Defendant appeals the first stage summary dismissal of his postconviction petition in
which he argues ineffective assistance by appellate counsel for failing to raise a facial
substantive due process constitutional challenge to the Illinois Sex Offender Registration Act
(Act) (730 ILCS 150/6 (West 2014)). On direct appeal from defendant’s conviction under the
Act for failing to register his change of address, appellate counsel raised various constitutional
challenges arguing the Act (1) imposed an ex post facto punishment in violation of the United 1-18-1060
States and Illinois Constitutions (U.S. Const. art. I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2)
constituted cruel and unusual punishment in violation of the eighth amendment of the United
States Constitution (U.S. Const. amend. VII); and (3) violated the proportionate penalties clause
of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). See People v. Thomas, 2017 IL App
(1st) 150403-U. Defendant’s constitutional challenges were unsuccessful and defendant’s
conviction was affirmed by this court. See id. Defendant subsequently filed his first
postconviction petition alleging ineffective assistance by appellate counsel for failing to argue on
direct appeal the Act’s registration requirements violated due process, the proportionate penalties
clause, and ex post facto principles. Defendant’s petition was summarily dismissed by the trial
court at first stage proceedings. Defendant appealed the dismissal arguing only that appellate
counsel was ineffective for failing to raise his facial substantive due process challenge to the Act.
For the reasons set forth below we affirm the trial court’s judgment.
¶3 BACKGROUND
¶4 Defendant, Edmond Thomas, was convicted of aggravated criminal sexual abuse in 1992
for displaying a gun and forcing a sixteen-year-old victim to perform a sex act on him for which
he was sentenced to six years’ imprisonment. As a result of his conviction, defendant was
subject to the Illinois Sex Offender Registration Act which, among other things, requires sexual
predators and certain sex offenders to register with police when they change their address.
¶5 In March 2014, defendant was arrested for failing to register his change of address with
Chicago police as required under the Act. Following a bench trial, defendant was convicted of
the charge and sentenced to six years’ imprisonment. Defendant subsequently appealed his
conviction. See Thomas, 2017 IL App (1st) 150403-U. We incorporate our prior order by
reference and do not restate the facts adduced at trial resulting in defendant’s conviction for
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failing to register his change of address as these details are not relevant to our decision here. See
id.
¶6 In the direct appeal of his conviction, defendant challenged the Act’s entire statutory
scheme as facially unconstitutional. Defendant specifically argued the Act (1) imposed an ex
post facto punishment in violation of the United States and Illinois Constitutions (U.S. Const. art.
I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2) constituted cruel and unusual punishment in
violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VII);
and (3) violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,
art. I, § 11). See Thomas, 2017 IL App (1st) 150403-U, ¶ 7. This court affirmed the trial court’s
judgment finding defendant failed to timely register with police after changing his address and
further concluded his constitutional challenges to the Act failed. Id. With respect to defendant’s
constitutional challenges, this court concluded defendant did not show the registration
requirements under the Act were punitive where all defendant’s arguments on direct appeal
hinged on the requirements of the Act constituting punishment. Id. at ¶ 25.
¶7 Post-Conviction Petition
¶8 Defendant subsequently filed his first postconviction petition alleging ineffective
assistance by appellate counsel for failing to argue on direct appeal the Act’s registration
requirements violated due process rights, the proportionate penalties clause, and ex post facto
principles. The circuit court summarily dismissed the petition at first stage proceedings finding
the petition lacked an arguable basis in law, was patently without merit, and failed to state the
gist of a constitutional deprivation. Thereafter the court filed a written order of dismissal.
Defendant’s late notice of appeal was permitted. This appeal followed.
¶9 ANALYSIS
¶ 10 Post-Conviction Hearing Act
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¶ 11 Defendant appeals the summary dismissal of his postconviction petition at first stage
postconviction proceedings which we review de novo. People v. Patterson, 2018 IL App (1st)
160610, ¶ 14.
¶ 12 The Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (West 2016), provides a
mechanism for collateral attack of a conviction or sentence allowing for inquiry into
constitutional claims relating thereto which were not, and could not be, adjudicated during the
trial or determined on appeal. People v. House, 2019 IL App (1st) 110580-B, ¶ 25. The Post-
Conviction Hearing Act sets forth a three stage process for hearing constitutional claims.
Patterson, 2018 IL App (1st) 160610, ¶ 15. Defendant’s claim was dismissed at first stage
proceedings.
“At the first stage, the circuit court independently reviews the petition and
determines whether the petition is frivolous or patently without merit. [Citations.]
A petition may be summarily dismissed at the first stage as frivolous and patently
without merit ‘only if the petition has no arguable basis either in law or in fact.’
[Citation.] A petition lacks an arguable basis in law or fact if it is based on ‘an
indisputably meritless legal theory or a fanciful factual allegation.’ [Citation.]
Because most petitions at the first stage are drafted by defendants with little legal
knowledge or training, a defendant need only present a limited amount of detail in
the petition to survive summary dismissal by the circuit court. [Citation.] That is,
defendants only need to set forth the ‘gist’ of an arguably constitutional claim to
meet the relatively low factual threshold to satisfy the first stage under the Act.
[Citation.]” Id.
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¶ 13 A petition lacking an arguable basis in law or fact is one based on an indisputably
meritless legal theory or fanciful allegations such as a claim completely contradicted by the
record or based on fantastic or delusional facts. People v. Brown, 236 Ill. 2d 175, 185 (2010).
¶ 14 In first stage postconviction proceedings the defendant is not required to make “a
substantial showing of a constitutional violation” nor is the defendant required to “demonstrate”
or “prove” the alleged constitutional violation to avoid dismissal. People v. Tate, 2012 IL
112214, ¶ 19. The allegations in the petition are to be taken as true and liberally construed.
Brown, 236 Ill. 2d at 184.
¶ 15 Defendant argues his “appellate counsel was arguably ineffective for failing to argue that
the [Act’s] registration requirements violated [defendant’s] due process rights.” Defendant
contends:
“The requirements and restrictions are neither narrowly tailored nor rationally
related to the State’s interest in protecting the public from sex offenders. As a
result, appellate counsel was arguably ineffective for failing to raise that issue and
this Court should advance [defendant’s] petition to the second stage.”
¶ 16 Defendant further argues,
“Here, appellate counsel’s performance was objectively unreasonable for failing
to argue that the [Act’s] registration requirements violate [defendant’s] due
process rights. This error prejudiced [defendant] because there is a reasonable
probability that [defendant] would have been successful and, even [if] he was not
successful on direct appeal, counsel failed to preserve the issue so that [defendant]
could appeal to the higher courts.”
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¶ 17 Contrary to defendant’s claims, as explained below, we do not find counsel was
ineffective for failing to raise defendant’s substantive due process challenge to the Act on direct
appeal.
¶ 18 Ineffective Assistance of Counsel
¶ 19 Claims alleging ineffective assistance of counsel are governed by the standards set forth
in Strickland v. Washington, 466 U.S. 668 (2004). People v. Veach, 2017 IL 120649, ⁋ 29. “At
the first stage of postconviction proceedings under the [Post-Conviction Hearing] Act, a petition
alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s
performance fell below an objective standard of reasonableness and (ii) it is arguable that the
defendant was prejudiced.” People v. Hodges, 234 Ill. 2d 1, 17 (2009).
“ ‘[A] defendant must show that counsel’s performance was objectively
unreasonable under prevailing professional norms and that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ [Citation.] ‘A “reasonable probability”
is defined as “a probability sufficient to undermine confidence in the outcome.” ’
[Citation.] ‘A defendant must satisfy both prongs of the Strickland test and a
failure to satisfy any one of the prongs precludes a finding of ineffectiveness.’
[Citation.]” Id. at ⁋ 30.
¶ 20 To be effective, “appellate counsel ‘has no obligation to raise every conceivable
argument which might be made, and counsel’s assessment of what to raise and argue will not be
questioned unless it can be said that his judgment in this regard was patently erroneous.’ ”
People v. Coleman, 168 Ill. 2d 509, 523 (1995) (quoting People v. Collins, 153 Ill. 2d. 130, 140
(1992)). “If the issue underlying a defendant’s claim of ineffective assistance of appellate
counsel is not meritorious, the defendant could not have suffered prejudice due to appellate
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counsel’s failure to raise it. Coleman, 168 Ill. 2d at 523. “[A] court need not ‘address both
components of the inquiry if the defendant makes an insufficient showing on one.’ ” People v.
Montgomery, 192 Ill. 2d 642, 671 (2000).
¶ 21 Our determination as to whether appellate counsel’s performance was ineffective under
the Strickland analysis necessitates a review of defendant’s facial substantive due process
challenge to the Act which he alleges counsel was deficient for not raising on direct appeal to
determine if that claim is meritorious. Coleman, 168 Ill. 2d at 523.
¶ 22 It is important to highlight that, on direct appeal, appellate counsel did raise several
constitutional challenges to the Act all of which were unsuccessful. As previously stated,
appellate counsel argued on direct appeal the Act was unconstitutional in that it (1) imposed an
ex post facto punishment in violation of the United States and Illinois Constitutions (U.S. Const.
art. I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2) constituted cruel and unusual punishment in
violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VII);
and (3) violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970,
art. I, § 11). See Thomas, 2017 IL App (1st) 150403-U, ¶ 7. We again note, appellate counsel
will not be deemed ineffective for failing to raise every conceivable argument on appeal and
counsel’s judgment in determining which issues to raise will not be questioned where that
judgment was not patently erroneous. See Coleman, 168 Ill. 2d at 523.
¶ 23 Given our decision in defendant’s direct appeal finding the Act does not constitute
punishment and based on Illinois caselaw addressing similar constitutional challenges to the Act,
we cannot say counsel’s performance was objectively unreasonable under prevailing professional
norms for failing to raise defendant’s substantive due process claim on direct appeal nor do we
find defendant suffered prejudice. See Hodges, 234 Ill. 2d at 17.
¶ 24 Substantive Due Process Challenge
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¶ 25 Defendant argues his appellate counsel was ineffective for failing to argue the Act’s
reporting requirements violate substantive due process rights.
¶ 26 As recited in Thomas, 2017 IL App (1st) 150403-U, ¶ 4,
“The Act requires sexual predators and certain offenders to register in person with
police when they change their address:
‘If any person required to register under this Article lacks a fixed
residence or temporary domicile, he or she must notify, in person, the
agency of jurisdiction of his or her last known address within 3 days after
ceasing to have a fixed residence and if the offender leaves the last
jurisdiction of residence, he or she, must within 3 days after leaving
register in person with the new agency or jurisdiction.’ 730 ILCS 150/6
(West 2016).
Sexual predators and certain sex offenders must
‘provide accurate information as required by the Department of State
Police. Such information shall include a current photograph, current
address, current place of employment, the sex offender’s or sexual
predator’s telephone number, including cellular telephone number, the
employer’s telephone number, school attended, all e-mail addresses,
instant messaging identities, chat room identities, and other Internet
communications identities that the sex offender uses or plans to use, all
Uniform Resource Locators (URLs) registered or used by the sex
offender, all blogs and other Internet sites maintained by the sex offender
or to which the sex offender has uploaded any content or posted any
messages or information.’ 730 ILCS 150/3(a) (West 2016)
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In addition to the registration requirement, ‘[t]he person shall pay a $100 initial
registration fee and a $100 annual renewal fee to the registering law enforcement
agency having jurisdiction. The registering agency may waive the registration fee
if it determines that the person is indigent and unable to pay the registration fee.’
730 ILCS 150/3(c)(6) (West 2016). Certain individuals ‘adjudicated to be
sexually dangerous and [are] later released or found to be no longer sexually
dangerous and discharged, shall register for the period of his or her natural life. A
sexually violent person or sexual predator shall register for the period of his or her
natural life.’ 730 ILCS 150/7 (West 2016).
‘Any other person who is required to register under this Article shall be
required to register for a period of 10 years after conviction or
adjudication if not confined to a penal institution, hospital or any other
institution or facility, and if confined, for a period of 10 years after parole,
discharge or release from any such facility.’ Id.
Failure by a defendant to comply with these registration requirements results in an
extension of the registration period ‘for 10 years.’ Id. Additionally, not abiding
by these requirements constitutes a Class 3 felony. 730 ILCS 150/10(a) (West
2016).” Thomas, 2017 IL App (1st) 150403-U, ¶ 4.
¶ 27 Defendant’s claim of ineffective assistance of counsel on appeal is made only against
appellate counsel and does not include trial counsel. Though defendant’s facial substantive due
process arguments could have been but were not raised by trial counsel before the trial court, we
initially note that these arguments, nevertheless, were not forfeited and could have been raised by
appellate counsel on direct appeal. With respect to this point, our supreme court has held review
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of a constitutional challenge to a criminal statute may be raised for the first time on appeal and is
not forfeited. People v. Ligon, 2016 IL 118023, ¶ 9.
¶ 28 Having concluding forfeiture would not have barred appellate counsel from raising
defendant’s substantive due process claim on direct appeal, we turn to the manner in which the
constitutionality of a statute is to be determined in order to assess whether appellate counsel was
ineffective for failing to present the substantive due process arguments on behalf of defendant on
direct appeal.
¶ 29 It is well settled,
“All statutes carry a strong presumption of constitutionality. [Citation.] To
overcome this presumption, a party challenging a statute must clearly establish
that it violates the constitution. [Citation.] This court will affirm a statute’s
constitutionality if the statute is reasonably capable of such an interpretation.
[Citation.]” People v. Johnson, 225 Ill. 2d 573, 584 (2007).
¶ 30 “The burden is particularly heavy where, as here, the party raises a facial challenge,
asserting that there is no circumstance in which the statute is valid.” People v. Pepitone, 2018 IL
122034, ¶ 12. “A court will affirm the constitutionality of a statute *** if it is reasonably
capable of such a determination and will resolve any doubts as to the statute’s construction in
favor of its validity.” (Internal quotation marks omitted.) People v. Wells, 2019 IL App (1st)
163247, ¶ 46. Whether a statute is unconstitutional is a question of law reviewed de novo.
Johnson, 225 Ill. 2d at 584.
¶ 31 Defendant argues the Act’s reporting requirements violate constitutional guarantees of
due process required under the fourteenth amendment of the United States Constitution and
article 1, section 2, of the Illinois Constitution. “The fourteenth amendment to the United States
Constitution (U.S. Const., amend. XIV) and article 1, section 2, of the Illinois Constitution (Ill.
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Const. 1970, art. 1, § 2) both provide that no person shall be deprived of life, liberty, or property
without due process of law.” Pepitone, 2018 IL 122034, ¶ 13.
¶ 32 Defendant’s claim is a substantive due process challenge. Substantive due process “bars
governmental action that infringes upon a protected interest when such action is itself arbitrary;”
in other words “ ‘the deprivation at issue is constitutionally invalid in and of itself, irrespective
of the process leading up to it.’ ” Id. (quoting People v. Cardona, 2013 IL 114076, ¶ 17).
¶ 33 “Where a statute is challenged on due process grounds, the initial step of our analysis is
to determine whether the statute restricts or regulates a liberty interest and whether that liberty
interest is a fundamental right.” Pepitone, 2018 IL 122034, ¶ 14. Where a statute infringes on a
fundamental right, strict scrutiny is applied under which “the statute must serve a compelling
governmental interest and be narrowly tailored to serve that interest.” People v. Avila-Briones,
2015 IL App (1st) 132221, ¶ 71.
¶ 34 Where a fundamental right is not implicated, the rational-basis test is applied where “the
statute must simply bear a rational relationship to any legitimate government interest.” Id. ¶ 72.
This “rational basis review requires us to ask two questions: (1) whether there is a legitimate
state interest behind the statutes; and, if so, (2) whether the statutes are rationally related to that
legitimate interest.” Id. ¶ 81. “While the rational basis test is not toothless [citations], it remains
highly deferential to the findings of the legislature.” (Internal quotation marks omitted.)
Pepitone, 2018 IL 122034, ¶ 17.
¶ 35 Here defendant claims the Act’s regulations and restrictions cannot survive under rational
basis or strict scrutiny review. We address each of defendant’s arguments in turn.
¶ 36 Fundamental Right and Strict Scrutiny
¶ 37 Defendant contends fundamental rights are implicated because the Act “arguably
constitutes punishment and, as a result, arguably affects a person’s fundamental rights to privacy
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and to be free from arbitrary confinement” and, as such, the Act should be subject to a strict
scrutiny analysis. (Emphasis added.) Defendant’s argument for application of strict scrutiny
hinges on the Act’s registration requirements being a form of punishment—an issue this court
resolved to the contrary in defendant’s direct appeal.
¶ 38 In defendant’s direct appeal we rejected defendant’s constitutional challenges based on
the Act constituting punishment stating:
“Though our case law has repeatedly held registration requirements for sex
offenders are not forms of punishment, defendant contends the expansion of the
Act’s registration requirements in 2013 tipped the Act over the line into a form of
punishment. We find defendant fails to support this argument.
The legislative intent behind the Act was not punitive, but rather ‘to create
an additional measure of protection for children from increasing incidence of
sexual assault and child abuse.’ [Citation.] Even when legislative intent is not to
create a punitive scheme, the effect of a statute may be so punitive as to negate
the legislature’s intent. [Citation.]” Thomas, 2017 IL App (1st) 150403-U, ¶¶ 16-
17.
¶ 39 To that end, we further found the Act had no punitive effect and explained that defendant
had not shown how any amendments to the Act would alter this determination. Id. ¶¶ 17-25.
Moreover, given the breadth of Illinois case law concluding the Act does not violate substantive
due process including Illinois Supreme Court precedent by which this court is bound, we cannot
find defendant’s appellate counsel’s decision not to raise the argument on direct appeal fell
below an objective standard of reasonableness as necessary to be ineffective. See Hodges, 234
Ill. 2d at 17.
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¶ 40 Furthermore, defendant acknowledges Illinois cases holding the Act “does not violate due
process because it does not constitute punishment or affect a fundamental right” but argues those
cases stemmed from our supreme court’s decision in People v. Malchow, 193 Ill. 2d 413 (2003),
finding the Act’s requirements did not constitute punishment. He notes Malchow did not look at
the current Act’s restrictions and requirements which he contends “are much more onerous” and
do not “comply with substantive due process.”
¶ 41 In Malchow, the court referenced its finding in People v. Adams, 144 Ill. 2d 381 (1991),
upholding an earlier version of the Act having concluded the Act’s registration requirement did
not constitute punishment. Malchow, 193 Ill. 2d. at 419. There the court concluded “the
legislature’s intent in requiring registration of sex offenders was to create an additional measure
of protection for children from increasing incidence of sexual assault and child abuse.” Id. at
420 (citing Adams, 144 Ill. 2d at 387). The Malchow court similarly concluded the intent of the
Sex Offender and Child Murderer Community Notification Law (Notification Law) 1 was to
protect the public, not punish sex offenders and child murderers. Id. The court went on to
analyze the seven factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), for
determining whether an act has a punitive effect and concluded the effect of the Notice Law was
not punitive so as to negate the legislature’s non-punitive intent. Malchow, 193 Ill. 2d at 421-24.
As noted above, this court, on direct appeal, undertook an identical analysis of the Mendoza-
Martinez factors with respect to the updated version of the Act at issue in this case and similarly
1 The Illinois Sex Offender Community Notification Law, 730 ILCS 152/101 et seq., requires state police to maintain a sex offender database for the purpose of identifying sex offenders and making information about them available to persons specified in the statute and to the public and works in tandem with the Act. See People v. Jones, 2018 IL App (1st) 151307, ¶ 52.
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concluded the relevant version had no punitive intent or effect. See Thomas, 2017 IL App (1st)
150403-U, ¶¶ 17-25. We see no basis for deviating from Malchow and its progeny as defendant
requests and cannot say appellate counsel was deficient for failing to raise this constitutional
claim.
¶ 42 Furthermore, following Malchow, our supreme court in In re J.W., 204 Ill. 2d 50, 67
(2003), stated the 2000 version of the Act’s registration requirements did not affect a
fundamental right. Id. Thereafter, the court in People v. Cornelius, 213 Ill. 2d 178, 203-04
(2004), concluded dissemination of the defendant’s information over the internet under the
Notification Law did not implicate a fundamental right necessitating strict scrutiny where the
fundamental right claimed was damage to one’s reputation though presented as invasion of
privacy. Id.
¶ 43 We also note other Illinois appellate court cases similarly finding post-Malchow versions
of the Act’s statutory scheme is not punitive and does not affect a fundamental right. See People
v. Rodriquez, 2019 IL App (1st) 151938-B, ¶ 21 (citing People v. Fredericks, 2014 IL App (1st)
122122, ¶ 58, and In re A.C., 2016 IL App (1st) 153047, ¶¶ 77-78 (analyzing 2012 and 2014
versions of the Act respectively since Malchow and concluding, as those cases had, the changes
to the Act did not render the Act punitive); see also Avila-Briones, 2015 IL App (1st) 132221, ¶¶
73-81 (commenting “the weight of authority shows that laws similar to the [2012 Act’s statutory
scheme] do not affect fundamental rights and concluding “ ‘ the right to be free from a lifetime
of burdensome, intrusive monitoring and restrictions’ ” is not a fundamental right warranting
strict scrutiny review of the 2012 version of the Act); see also Pollard, 2016 IL App (5th)
130514, ¶¶ 32-37 (concluding the Act’s statutory scheme does not impact a defendant’s
fundamental rights).
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¶ 44 We are not persuaded by defendant’s citation to People v. Cetwinski, 2018 IL App (3d)
160174, a case that delt with an eighth amendment as-applied constitutional challenge to the Act.
As highlighted by defendant, the Third District in Cetwinski correctly points out “the [Act’s]
statutory scheme has been amended numerous times since Malchow, with additional
requirements and restrictions placed upon sex offenders[.]” Id. at ¶ 51. Notwithstanding, as this
court pointed out in People v. Jones, 2018 IL App (1st) 151307, ¶¶ 52-53, our supreme court
found the Act is not punitive in nature and repeatedly rejected claims to the contrary explaining
we must follow the supreme court’s precedent. Id.
¶ 45 We also reject defendant’s claim the Act violates a fundamental privacy right. Defendant
cites our supreme court’s decision in Cornelius, 213 Ill. 2d 178 (2004), and acknowledges “prior
decisions of Illinois courts have rejected the argument that a sex offender has a privacy interest
in his registry information, or that the sex offender database unfairly infringes on the right to
privacy[.]” However, defendant contends these cases dealt with prior versions of the Act “at a
time when our reliance on the internet and social media were nowhere near as prevalent” and
involved versions of the Act that were “far more limited in scope[.]”
¶ 46 Ultimately, defendant’s concern with the dissemination of his information, some of
which he grants is already publicly available, is that “[h]e is branded a sex offender for the rest
of his life, and the harm to his reputation, including his ability to maintain employment or
function normally in society, is manifest by the severity and duration of the Act’s restrictions.”
¶ 47 While the Act may have changed as defendant suggests, our supreme court’s rationale in
Cornelius remains applicable. There, the court was not persuaded by the defendant’s arguments
concerning internet access making the defendant’s information more easily accessible
concluding:
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“defendant does not have a cognizable privacy interest in his sex offender registry
information. Defendant ‘engaged in conduct that lowered the privacy bar *** [as]
[h]is acts spawned a criminal prosecution culminating in a public record that
contains the challenged information.’ ” Id. at 196.
¶ 48 Moreover, in analyzing the defendant’s substantive due process claim in Cornelius, the
court determined the defendant’s “fundamental right” argument was really an argument the
dissemination of his information would damage his reputation. Id. at 204. As the quote above
from defendant’s brief reveals, this is the very argument defendant undertakes in this appeal
despite it being rejected in Cornelius. The court in Cornelius concluded, “the right to be free
from the shame, stigma and embarrassment resulting from a conviction for sexually abusing a
child is not the kind of fundamental right contemplated by our constitution” and thus strict
scrutiny in not applicable.” Id. As to this issue, we are bound to follow the decisions of our
supreme court. See Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 23.
Where there is no identifiable basis for application of a strict scrutiny analysis of the Act,
defendant’s appellate counsel cannot be deemed deficient for failing to raise such a claim. See
Coleman, 168 Ill. 2d at 523 (holding a claim of ineffective assistance of counsel fails where the
issue underlying that claim is not meritorious such that no prejudice was suffered due to
counsel’s failure to raise it).
¶ 49 Rational Basis Test
¶ 50 Having found no fundamental right implicated by the Act so as to trigger strict scrutiny
review, we turn to defendant’s allegation appellate counsel was deficient for not arguing on
appeal the Act fails under the rational basis test. Defendant argues that even if a fundamental
right is not implicated by the Act, its “onerous restrictions *** do not achieve the government[’]s
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interest in protecting the public from sex offenders.” Defendant does not contend the Act serves
no legitimate interest, only that its restrictions do not achieve that interest.
¶ 51 The test here is whether the Act’s restrictions are “rationally related to the legitimate state
interest.” See Avila-Briones, 2015 IL App (1st) 132221, ¶ 81; see also Pepitone, 2018 IL
122034, ¶ 19 (explaining that where the defendant concedes a legitimate interest by the
legislature, as is the case here, the only dispute is whether the requisite constitutional nexus
exists—a rational relation between the Act’s aim and its means).
¶ 52 Defendant specifically argues “the vast amount of information collected and disseminated
by [the Act] is not rationally related to the goal of protecting the public.” However, “the rational
basis test does not require narrow tailoring; it only requires rationality.” Id. at ¶ 30. Nor does
the rational basis test require the means be the best means of accomplishing the legislature’s
intent. Pollard, 2016 IL App (5th) 130514, ¶ 42. “As long as there is a conceivable basis for
finding a rational relationship, the law will be upheld.” (Internal quotation marks omitted.)
People v. Parker, 2016 IL App (1st) 141597, ¶ 80.
¶ 53 Defendant has not demonstrated the Act’s registration and notification requirements
could be found to be devoid of any rational basis as would be necessary for his ineffective
assistance of counsel argument to have merit. Moreover, given that Illinois courts have
repeatedly held the Act’s provisions do not violate substantive due process under rational basis
review we cannot say appellate counsel was objectively unreasonable in not making this claim.
See Cornelius, 213 Ill. 2d at 204-05 (finding under the rational basis test, the notification
provisions of the 2002 version of the Act bore a rational relationship to the purpose of the Act
and Notification Law—to assist law enforcement and to protect the public from sex offenders—
stating “we find nothing unreasonable in the methods of serving the intended purposes of the
statutes ***[concluding] there is a rational relationship between the disclosure of sex offender
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registration information via the Internet and the goals of protecting the public and assisting law
enforcement.”); Avila-Briones, 2015 IL App (1st) 132221, ¶ 84 (finding rational basis for the Act
and Notification Laws to “help law enforcement and private individuals keep track of sex
offenders by providing information about their presences and offenses.”); In re A.C., 2016 IL
App (1st) 153047 ¶¶ 78-82 (finding the Act’s registration and notification requirements
rationally related to a legitimate state interest even where a juvenile offender was at issue).
¶ 54 This court is not persuaded that any of the changes to the Act highlighted by defendant
since these cases finding a rational basis nexus would change this determination. Defendant
argues,
“now, a sex offender’s contact information, email and internet address,
employment information, and school history are made available to school boards,
colleges, libraries, public housing authorities, and volunteer organizations dealing
with children.”
¶ 55 Defendant also notes that now, an offender’s license plate numbers as well as identifying
marks on their body can be obtained upon request. Information collected includes an offender’s
contact information, his employer’s contact information, information related to his internet
usage, the terms and conditions of his parole, and specific information about his offenses and the
complaining witnesses. We cannot conclude nor does defendant argue how any of these
expansions are not rationally related to the government’s legitimate interest in protecting the
public from sex offenders. This is particularly true with respect to an offender’s digital footprint
because, as defendant points out, we live in a time when our reliance on the internet and social
media is more prevalent.
¶ 56 Defendant also argues there can be no rational basis nexus under the Act because most
convicted sex offenders do not sexually reoffend citing various studies including published
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findings from the Sex Offender Registration Task Force established by the General Assembly
and interpreted by the Third District in People v. Tetter, 2018 IL App (3d) 150243, ¶ 78, as
calling into question the efficacy of the Act’s statutory scheme.
¶ 57 However, this argument cannot succeed. As stated by our supreme court in Pepitone in
its discussion of the rational basis test,
“The legislature’s judgments in drafting a statute are not subject to judicial fact
finding and may be based on rational speculation unsupported by evidence or
empirical data. [Citation.] If there is any conceivable set of facts to justify the
statute, it must be upheld. [Citation.] This court will not second-guess the
wisdom of the legislative enactments or dictate alternative means to achieve the
desired result. [Citation.]” (Internal quotation marks omitted.) Pepitone, 2018 IL
122034, ¶ 17.
¶ 58 Furthermore, as the Pepitone court pointed out in response to the defendant’s citation to
empirical studies regarding recidivism rates of sex offenders as argument for the required
constitutional nexus not having been met,
“The problem for the defendant is that, regardless of how convincing the social
science may be, the legislature is in a better position than the judiciary to gather
and evaluate data bearing on complex problems.” (Internal quotation marks
omitted.) Id. at ¶ 24.
¶ 59 As Illinois caselaw does not support defendant’s substantive due process argument under
the rational basis test, we do not find defendant’s appellate counsel’s decision not to raise the
argument on direct appeal could have fallen below an objective standard of reasonableness. See
Hodges, 234 Ill. 2d at 17. Accordingly, we find defendant failed to make the required showing
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of a gist of a constitutional claim of ineffective assistance of appellate counsel in his
postconviction petition.
¶ 60 CONCLUSION
¶ 61 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 62 Affirmed.
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