Opinion
No. 1-15-1997
05-02-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee , v. PEDRO BAHENA-MENDOZA, Defendant-Appellant
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). Appeal from the Circuit Court of Cook County. No. 12 CR 17993 Honorable Joseph M. Claps, Judge, presiding. PRESIDING JUSTICE COBBS delivered the judgment of the court.
Justices Howse and Lavin concurred in the judgment.
ORDER
¶ 1 Held: Defendant's constitutional challenge to the Illinois Sex Offender Registration Act is rejected because the Act does not violate federal or state due process rights. Defendant is not entitled to presentencing incarceration credit against fines due to nature of charges and incorrectly assessed fees to be vacated or corrected. ¶ 2 Defendant, Pedro Bahena-Mendoza, was convicted of two counts of predatory criminal sexual assault of a child and sentenced to eight years' imprisonment on each count, to be served consecutively. As a result of his convictions, defendant became subject to the Illinois Sex Offender Registration Act ("the Act") (730 ILCS 150/1 et seq. (West 2014)). Defendant argues that the Act is facially unconstitutional because it infringes upon a registrant's liberty interests without procedural and substantive due process. Defendant does not challenge his conviction or raise an argument that the Act is unconstitutional as applied to him. Additionally, defendant contests the fines, fees, and costs that were assessed against him.
¶ 3 I. BACKGROUND
We provide only a brief recitation of the facts. A detailed review of the rulings on pre-trial motions or the trial itself is unnecessary because the particular facts of a party's case are irrelevant in examining a facial challenge to a statute's constitutionality. Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 27.
¶ 4 Defendant was arrested on August 28, 2012, after being accused of assault by a nine-year-old male victim. An indictment was filed against defendant on October 3, 2012. Defendant was charged with three counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse of a child. Defendant waived a jury trial and the bench trial began on July 1, 2014. ¶ 5 At trial, the State presented testimony from the victim. Additionally, the forensic interviewer from the Chicago Children's Advocacy Center authenticated a video recording of her interview with the victim from 2012. The video was published to the court. The detective who investigated the allegations testified about defendant's arrest, interrogation, and written statement to the assistant State's attorney. The assistant State's attorney testified about obtaining defendant's statement which was also published to the court. Stipulations were entered regarding the victim's age, relation to the defendant, his disclosure to his mother, and the results of his medical examination. Bruising was documented on the victim's right shoulder, mid-neck, left neck, left clavicle, mid-back, and around his urethra consistent with victim's testimony about where defendant "bit" him. Defendant did not testify or present any evidence in response to the State's case-in-chief. ¶ 6 The trial court found that, despite discrepancies between defendant's written statement and the victim's testimony, the State proved two of the three counts of predatory criminal sexual assault beyond a reasonable doubt. The evidence was clear that defendant's penis came into contact with both the victim's anus and mouth. It was unclear if defendant's mouth came into contact with the victim's penis. Although defendant acknowledged all three acts in his written statement, the victim's testimony only described two of the three acts. The court commented that the charge of aggravated criminal sexual abuse was not proven as a separate act of contact. The alleged contact with the victim's buttocks would likely be included in the contact of the defendant's penis with the victim's anus charged as predatory criminal sexual assault. ¶ 7 Defendant was sentenced on May 8, 2015. Defendant was not released on bail for any period of time between his arrest and his sentencing hearing. Orders were entered requiring defendant submit blood samples to the state police and be tested for sexually transmitted diseases. A separate order was entered assessing defendant a total of $1,112.00 in fines, fees, and costs and recording that defendant served 938 days in custody.
¶ 8 II. ANALYSIS
¶ 9 On appeal, defendant challenges the constitutionality of the Illinois Sex Offender Registry Act on its face, as violative of the due process clauses of the United States and Illinois Constitutions. U.S. Const. amend. XIV; Ill. Const.1970, art. I, § 2. A statute is presumed constitutional, and a defendant bears the burden of demonstrating its invalidity. People v. Malchow, 193 Ill. 2d 413, 418 (2000). A facial challenge must show that no set of circumstances exists under which the statute would be valid. People v. One 1998 GMC, 2011 IL 110236, ¶ 20. Courts have the duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of its validity. People v. Patterson, 2014 IL 115102, ¶ 90. We review the constitutionality of a statute de novo. Id.
¶ 10 A. Amendments to the Act
¶ 11 Defendant acknowledges that the Illinois Supreme Court upheld the constitutionality of the 1998 version of the Act against similar challenges in Malchow. 193 Ill. 2d 413, 418 (2000). Since that decision was issued, the legislature has amended the Act multiple times. Defendant was sentenced in 2015 and challenges the 2014 version of the Act highlighting the following changes: (1) an increased number of agencies a registrant must register in-person with, (2) increases in the number of times a registrant may be called in by law enforcement outside of specified triggering events, (3) the reduced time period given for registration, and (4) the required registration of travel plans. 730 ILCS 150/1 et seq. (West 1998); 730 ILCS 150/1 et seq. (West 2014). Defendant further complains about the increases in the quantity of information a registrant must provide, the length of time most registrants are required to comply with registration, and the initial and annual renewal fees for registration. Id. Registrants are also now prevented from changing their names and required to renew their driver's licenses annually. Id. Defendant further notes that noncompliance is punished more severely. 730 ILCS 150/10 (West 1998); 730 ILCS 150/10 (West 2014). Outside of the Act, defendant also calls into question related provisions in the Illinois Criminal Code which penalize registrants who fail to abide by residence and presence restrictions. See 720 ILCS 5/11-0.3(a)-(b-20); 5/11-9.3, 11-9.4-1 (West 2014). Defendant argues that the statutory scheme has significantly changed since Malchow and entreats this court to give fresh consideration to the Act's constitutionality.
See Pub. Act 93-0979 (eff. Aug. 20, 2004), Pub. Act 94-0168 (eff. Jan. 1, 2006), Pub. Act 94-0911 (eff. June 23, 2006), Pub. Act 94-0945 (eff. June 27, 2006), Pub. Act 95-0640 (eff. June 1, 2008), Pub. Act 96-1094 (eff. Jan. 1, 2011), Pub. Act 96-1104 (eff. Jan. 1, 2011), Pub. Act 97-0154 (eff. Jan. 1, 2012), Pub. Act 97-0333 (eff. Aug. 12, 2011), Pub. Act 97-0383 (eff. Jan. 1, 2012), Pub. Act 97-0578 (eff. Jan. 1, 2012), Pub. Act 97-0813 (eff. July 13, 2012), Pub. Act 97-1098 (eff. July 1, 2014), Pub. Act 97-1150 (eff. Jan. 25, 2013), Pub. Act 98-0558 (eff. Jan. 1, 2014), Pub. Act 98-0612 (eff. Dec. 27, 2013).
Since 2014, minor amendments which do not affect our constitutionality analysis were also made. See Pub. Act 99-0078, § 525 (eff. July 20, 2015) (making stylistic amendments to 730 ILCS 150/10); Pub. Act 99-0755, § 10 (eff. Aug. 5, 2015) (amending the place of registration with the Chicago Police Department to a fixed location designated by the Superintendent of the Department rather than the Department Headquarters); and Pub. Act. 100-0428 (eff. Jan. 1, 2018) (amending 730 ILCS 150/2 for definition of a child).
The constitutionality of 720 ILCS 5/11-9.4-1(b) (West 2016) was recently upheld by the Illinois Supreme Court in People v. Pepitone, 2018 IL 122034. --------
¶ 12 B. Procedural Due Process
¶ 13 Defendant first complains that the Act presents a great risk of erroneous deprivation of a registrant's liberty interest because there is no method for initial or future evaluation of the danger a registrant poses and a showing that continual monitoring is necessary. "A procedural due process claim challenges the constitutionality of specific procedures used to deny a person's life, liberty or property." In re M.A., 2015 IL 118049, ¶ 35. Challenges may be brought concerning, not only procedures affecting fundamental rights, but also any life, liberty, or property interest. People v. Avila-Briones, 2015 IL App (1st) 132221, ¶ 80. The aim of procedural due process is not to protect persons from the deprivation, but only from mistaken or unjustified deprivation. In re J.R., 341 Ill. App. 3d 784, 795 (2003) (citing Segers v. Industrial Comm'n, 191 Ill. 2d 421, 434 (2000)). "The fundamental requirements of due process are notice of the proceeding and an opportunity to present any objections." In re M.A., 2015 IL 118049, ¶ 35. We consider the following factors to evaluate a procedural due process claim: (1) whether a life, liberty or property interest has been interfered with by the State; (2) the risk of erroneous deprivation of this interest under the current procedures and the value of additional safeguards; and (3) the administrative and financial burden additional procedures would have on the state's interest. In re J.R., 341 Ill. App. 3d at 795. ¶ 14 Defendant first contends that the Act's expanded restrictions create affirmative disabilities and restraints on a registrant's liberty interests to be free from a lifetime of intrusive and burdensome monitoring. However, Illinois case law addressing challenges to the 1998 version of the Act has held that registration under the Act does not deprive registrants of any protected liberty interests. People v. Malchow, 306 Ill. App. 3d 665, 672 (1999); People v. Logan, 302 Ill. App. 3d 319, 322 (1998)). Courts addressing the amended Act have avoided revisiting this question by focusing on the other due process factors and have held that regardless of whether liberty interests were proven to be at stake, the due process challenge would fail. People v. Cardona, 2012 IL App (2d) 100542, ¶ 47. Defendant's reliance on caselaw from outside of this jurisdiction, and Illinois cases which have implied or indicated a liberty interest but have not overturned case precedent, is unavailing. Without more, we decline to find that the Act interferes with a registrant's liberty interests. See People v. Qurash, 2017 IL App (1st) 143412, ¶ 34 (Where there is Illinois law on point, we need not, and should not, consider cases from other jurisdictions); In re A.C., 2016 IL App (1st) 153047, ¶ 63 (citing multiple cases showing that the Act does not implicate protected liberty interests). ¶ 15 Even if a liberty interest was implicated under the Act, defendant cannot show how changing current procedures would impact the risk of erroneous deprivation of such interest. Defendant acknowledges that our courts addressing post-Malchow due process challenges have found the existing processes satisfactorily safeguarded a registrant's interests. People v. Avila-Briones, 2015 IL App (1st) 132221; People v. Pollard, 2016 IL App (5th) 130514. In Avila-Briones, this court adopted the reasoning in Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 4, 7-9 (2003), and noted that no additional procedures would be necessary to satisfy due process. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 91-92. Registrants are already given important procedural safeguards applicable to the criminal proceeding leading up to their convictions, before they became subject to the Act, including the right to notice, the right to counsel, the right to a jury trial, the right to confront witnesses, the privilege against self-incrimination, and the standard of proof beyond a reasonable doubt. Pollard, 2016 IL App (5th) 130514, ¶ 48 (citing People ex rel Birtkett v. Konetski, 233 Ill. 2d 185, 201-02 (2009)). Availability of these procedural safeguards, provide registrants a means to properly contest the process by which the status of "sex offender" and the related registration requirements are imposed upon them. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 91-92. Application of the Act is based entirely on the offense for which the sex offender has been convicted and a sex offender's likelihood to reoffend is irrelevant to the assessment of whether to impose registration requirements on the individual. Id. ¶ 92. ¶ 16 Defendant asks this court to reject existing caselaw because it fails to acknowledge a key difference between presenting a defense at trial and presenting an argument against the application of the Act. Defendant maintains that the different goals an individual may have, as a criminal defendant or as a potential registrant, require different procedural safeguards. Defendant's argument is not supported by any legal authority. We find no reason to reject the analyses in Avila-Briones and Pollard. Further, we note that even in instances where fewer safeguards have been given to registrants, procedural due process was not violated. See People v. Cardona, 2012 IL App (2d) 100542 (required registration affirmed where defendant challenged finding of status as a sex offender in hearing for discharge from mental health center which was more procedurally akin to a civil than in criminal trial). Defendant has not shown that the value of greater procedural safeguards would prevent erroneous or unjustified deprivation of a registrant's interests. Although defendant provides an extensive analysis about the benefit additional procedures would have on the current administrative and financial burdens of the Act, he has failed to establish that the Act in the first instance, impacts any liberty interest. Accordingly, based on well-settled case law, we conclude that there is no basis to find that the Act violates procedural due process.
¶ 17 C. Substantive Due Process
¶ 18 Defendant argues that the Act violates substantive due process whether considered under strict scrutiny or rational basis review. He contends that the Act impacts a fundamental liberty interest and is not narrowly tailored because it is imposed without consideration of a defendant's individual risk of reoffending. In the alternative, defendant contends that the nature of the Act is both overinclusive and underinclusive having no rational relationship to the goal of protecting the public.
¶ 19 1. Strict Scrutiny
¶ 20 Before proceeding with our analysis, we first determine the nature of the allegedly infringed upon right. In re J.W., 204 Ill. 2d 50, 66 (2003). A statute is subject to strict scrutiny analysis when a constitutionally protected fundamental right is at issue. People v. Cornelius, 213 Ill. 2d 178, 204 (2004). To find a statute constitutional under strict scrutiny, the statute must serve a compelling government interest and be narrowly tailored to serve that interest. Id. Fundamental rights protected by the substantive due process clause include the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, to abortion, and to refuse unwanted lifesaving medical treatment. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). ¶ 21 Our supreme court has held that sex offender registration provisions do not affect fundamental rights. In re J.W., 204 Ill.2d at 6; see also People v. Fredericks, 2014 IL App (1st) 122122, ¶ 40. Defendant acknowledges that freedom from registration requirements is not recognized by our courts as a fundamental right and urges our reconsideration based on the additional burdens he identified. In particular, he argues that the related restrictions on living and occupational choices and the "shaming component" of the registration provisions affect fundamental liberty interests. However, the right to pursue a profession is not a recognized fundamental right for due process purposes. Rodrigues v. Quinn, 2013 IL App (1st) 121196, ¶ 7. Similarly, the right to be free from shame, stigma, or embarrassment in this instance is also not a fundamental right. People v. Cornelius, 213 Ill. 2d 178, 204 (2004). Defendant has failed to identify a fundamental right warranting strict scrutiny review of the Act, therefore we next consider whether the Act passes constitutional muster under rational basis review.
¶ 22 2. Rational Basis
¶ 23 Defendant maintains that the Act fails rational basis review because it is both overinclusive and underinclusive. In support of his overinclusive argument, he points again to the lack of consideration to the registrant's risk of reoffending and lack of procedures to be released from lifetime registration requirements. Defendant argues that the Act does not protect the public when it unnecessarily subjects registrants who will never recidivate and who pose no risk to the community to follow its requirements for life. Defendant further claims that the Act is underinclusive because it fails to capture the truly dangerous sex offenders due to the offense-based classification which may be skewed by defendants who receive favorable court outcomes on higher-risk offenses. ¶ 24 Rational basis review is highly deferential to the legislature; it is not concerned with the wisdom of the statute or whether it is the best means to achieve the desired outcome. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125-26 (2004). Rather, "[s]o long as there is a conceivable basis for finding the statute rationally related to a legitimate state interest, the law must be upheld." Id. at 126. Under rational basis review, "a statute 'is not fatally infirm merely because it may be somewhat underinclusive or overinclusive.'" Avila-Briones, 2015 IL App (1st) 132221, ¶ 83 (quoting Maddux v. Blagojevich, 233 Ill. 2d 508, 547 (2009)). ¶ 25 The court in Pollard held that the Act satisfied the rational basis test because there is a rational relationship between the registration, notification, and restrictions of sex offenders and the protection of the public from such offenders. Pollard, 2016 IL App (5th) 130514, ¶ 42. It is well established that there is a legitimate state interest in protecting the public from sex offenders. Id. ¶ 39. The Act enables law enforcement to monitor the whereabouts of these sex offenders and the restrictions reduce the opportunities for reoffending. Thus, although the scheme may be imperfect, we find that defendant's claim fails under rational basis review as the 2014 version of the Act is rationally related to the legitimate state interest of protecting the public from sex offenders and is not unconstitutional on its face. ¶ 26 Defendant argues that empirical studies have shown that sexual offender registration requirements at best, have no impact on recidivism, and at worse, actually increase recidivism due to the increased difficulty of reintegrating into the community. Defendant asks this court to recognize these studies as proof that the Act is not rationally related to its purpose of protecting the public. This is essentially a question of policy more appropriately directed to the legislature rather than the court. In re A.A., 2015 IL 118605, ¶ 27. Although courts exercise independent judgment on issues of constitutional law, the legislature is in a better position to gather and evaluate data bearing on complex problems. People v. Minnis, 2016 IL 119563, ¶ 41 (citing City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 440 (2002)). The task before us is solely a determination of whether the legislature has violated the constitution, not whether the legislation enacted is wise or poor policy. Minnis, 2016 IL 119563, ¶ 40. Accordingly, we confine our analysis to whether or not the requirements of the Act are rationally related to the goal of protecting the public, and we continue to hold that they are.
¶ 27 D. Fines and Fees
¶ 28 Next, defendant argues that the trial court erred in its assessment of certain fines and fees totalling $45 and its transcription of his presentencing custody credit. Defendant forfeited review by failing to object during sentencing. People v. Hillier, 237 Ill. 2d 539, 544 (2010). However, a reviewing court may modify a fines and fees order without remand. Ill. S. Ct. R. 615(b)(1); see People v. McGee, 2015 IL App (1st) 130367, ¶ 82 (ordering clerk of the circuit court to correct fines and fees order). As a matter of statutory interpretation, we review the propriety of a trial court's imposition of fines and fees de novo. McGee, 2015 IL App (1st) 130367, ¶ 78. ¶ 29 The first assessment challenged by defendant is the probable cause hearing fee (55 ILCS 5/4-2002.1(a) (West 2014)), which applies in cases where a preliminary hearing is held to determine the existence of probable cause that the accused has committed an offense. Defendant contends, and the State correctly concedes, that fee should not have been imposed in this case because he was charged via indictment and no probable cause hearing was held. See People v. Guja, 2016 IL App (1st) 140046, ¶ 69 (citing People v. Smith, 236 Ill. 2d 162, 174 (2010)). Accordingly, we vacate this $20 fee. ¶ 30 Next, defendant argues that the state police operation charge (705 ILCS 105/27.3a (1.5) (West 2014) is actually a fine, not a fee, because it does not go towards defendant's prosecution and therefore should be subject to a $5 per day presentence incarceration credit. Although this assessment has been construed as a fine, People v. Brown, 2017 IL App (1st) 142877, ¶ 74, defendant overlooks the fact that the $5 per day credit does not apply to a person incarcerated for sexual assault. See 725 ILCS 5/110-14(b) (West 2014). Sexual assault, as defined by the statute, includes predatory criminal sexual assault of a child. 730 ILCS 5/5-9-1.7(a)(1) (West 2014). Accordingly, we find defendant would not be entitled to presentence incarceration credits against any fines. 725 ILCS 5/110-14(b) (West 2014); People v. Rexroad, 2013 IL App (4th) 110981, ¶¶ 49-51. Defendant argues only that credit should be applied toward this assessment but does not challenge the $15 assessment itself. We find that no modifications to this assessment are required. ¶ 31 Next, defendant argues, and the State correctly concedes, that both the $5 electronic citation fee (705 ILCS 105/27.3e (West 2014)) and the $5 court system fee (55 ILCS 5/5-1101(a) (West 2014)) should be vacated because they do not apply to felony cases. We find that predatory criminal sexual assault does not fall within the categories listed under either cited statute for which fees can be assessed. Accordingly, we vacate these two charges. The State argues that in lieu of these fees, the $50 court system fee (55 ILCS 5/5-1101(c)(1) (West 2014)) should have been assessed. We agree that section 1101(c)(1) is applicable to defendant's case and the $50 court system fee should have been assessed. However, despite the State's concession that this fee has been construed as a fine and is subject to the $5 per day credit, we find that defendant is not entitled to any credit against this assessment for the same reasons cited above. See 55 ILCS 5/5-1101(c)(1) and 725 ILCS 5/110-14(b) (West 2014). ¶ 32 Finally, defendant highlights a scrivener's error in the order assessing fines, fees, and costs. The trial court recorded the number of days served in presentencing custody as 938 and our review of the record indicates the correct number was 983 days. Accordingly, we direct the clerk of the circuit court to correct this number to accurately reflect the time defendant was incarcerated from his arrest on August 28, 2012, up to his sentencing hearing on May 8, 2015.
¶ 33 III. CONCLUSION
¶ 34 For the reasons stated, we affirm the constitutionality of the Illinois Sex Offender Registration Act. We order the clerk of the circuit court to modify the order assessing fines, fees, and costs. ¶ 35 Affirmed; fines, fees, and costs order modified.