People v. Burchell, 2018 IL App (5th) 170079 (April). Episode 510 (Duration 9:59)
State’s SORA complaint was insufficient.
Defendant is successful with this motion to dismiss.
The Illinois Sex Offender Registration Act (SORA)
Found within section 3(a) of SORA is a paragraph that states, in its entirety:
“A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address.”
As the State aptly notes, section 6 explains how to notify a law enforcement agency having jurisdiction of a change of address but does not specify a time frame for so doing, instead stating that the change of address notification must be made
“within the time period specified in Section 3”.
The state tried to charge defendant with a version of failure to register.
The defendant was charged, in a one-count information, with “Unlawful Failure of Sex Offender to Report Absence From Address of Registration.” The State further alleged that the defendant committed the offense of “Unlawful Failure of Sex Offender to Report Absence From Address of Registration” during the time frame of “on, about or between the 12th day of November, 2016, through the 12th day of February, 2017” in Clinton County when the defendant “knowingly failed to report within 3 days, in person, to the *** agency of jurisdiction of his last known address, that he was temporarily absent from his current address of registration *** for 3 or more days.”
Right To Be Informed
As the Illinois Supreme Court has recognized, an individual accused of a crime “has a fundamental right, under both the Federal Constitution (U.S. Const., amend. VI) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8), to be informed of the ‘nature and cause’ of criminal accusations made against” that individual. People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996).
The failure to charge an offense “implicates due process concerns.”
Charges Must State An Offense
Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(8)) provides that,
“[u]pon the written motion of the defendant made prior to trial before or after a plea has been entered,” the trial court may dismiss an information if “[t]he charge does not state an offense.”
This court has noted that, pursuant to the Code, to sufficiently allege the commission of an offense, the charging instrument must
- state the name of the offense
- cite the statutory provision alleged to have been violated
- set forth the nature and elements of the offense charged
- state the date and county of the offense and
- state the name of the accused.
See, e.g., People v. Terry, 342 Ill. App. 3d 863, 867 (2003); see also 725 ILCS 5/111-3(a).
The purpose of the Code’s requirements “is to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.” The Illinois Supreme Court has held that the pivotal question when evaluating the sufficiency of a charging instrument is “whether there was sufficient particularity to allow the accused to prepare a defense.” People v. Klepper, 234 Ill. 2d 337, 351 (2009).
When the sufficiency of the charging instrument is attacked in a pretrial motion, our de novo standard of review requires us to determine whether the instrument strictly complies with the Code.
General & Specific Offenses
If the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the charging instrument may simply set out the offense in the language of the statute.
However, if the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient, and instead the facts which constitute the crime must be specifically set forth.
Must Register Before The Absence
We agree with the State that the only logical construction of the temporary absence notification requirement of section 3(a), as written, is one that requires the notification to be made on, or prior to, the third day of temporary absence.
Elsewhere in SORA, where a “grace period” for compliance with a provision of the statute exists, the legislature makes this clear.
But Must The Days Be Consecutive Or In Aggregate?
This, however, does not end our inquiry.
As the defendant points out, section 3(a) does not explicitly state whether to qualify thereunder the temporary absence in question may consist of three aggregate days of temporary absence in a calendar year (which the State, on appeal, seems to suggest is the case) or must consist of three consecutive days of temporary absence.
If a registrant is not required to make a notification unless there is a three-consecutive-day temporary absence, that registrant clearly has much more latitude than if a temporary absence of three aggregate days in a calendar year triggers the notification requirement.
For example, under a three-consecutive-day scenario, a registrant could be temporarily absent from the registered address for a two-consecutive-day period each week without ever triggering the notification requirement. Obviously, that would not be the case under a three-aggregate-day scenario.
Thus, a three-aggregate-day construction of section 3(a) would impose a greater burden, and/or restriction, on registrants.
The code is silent on this point.
The reviewing court looked at the rest of the SORA law and concluded that unless the legislature explicitly uses aggregate-day language in a particular provision of SORA, it intends to refer to consecutive days in that provision.
Recalling that if a statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient and instead the facts which constitute the crime must be specifically set forth. In this case, as explained above, section 3(a) does not explicitly specify the type of conduct that is prohibited by the statute—a temporary absence of three or more consecutive days—but instead defines the offense only in the more general terms of a temporary absence of three or more days.
The code generally requires absence for 3 or more days. It does not get into the specifics of whether or not the days must be consecutive or in the aggregate.
The amended information in this case does not allege that the defendant was temporarily absent from his registered address for three or more consecutive days. Thus, it omits one of the elements of the offense the defendant was alleged to have committed.
Accordingly, we conclude that a charge under section 3(a) that is couched in the language of section 3(a) is insufficient and does not set forth the nature and elements of the offense charged.
Therefore, the charge does not adequately apprise the defendant of the nature of the offense with which he is charged so that he may prepare a defense and does not assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct.
In light of the fact that the offense in question here required the State to prove, as one of the elements of the offense, a temporary absence of three or more consecutive days over the course of the broad three-month time period, we do not believe that the instrument’s less-specific allegation that the defendant was temporarily absent for “3 or more days” during that time period contained sufficient particularity to allow the defendant to prepare a defense.
Therefore, the charging instrument in this case fails to strictly comply with the requirements of the Code and does not sufficiently charge an offense in this case.
For the foregoing reasons, we affirm the order of the circuit court of Clinton County that granted the defendant’s motion to dismiss the one-count information that charged him with Unlawful Failure of Sex Offender to Report Absence From Address of Registration.