People v. McClenton, 2017 IL App (3d) 160387 (September). Episode 408 (Duration 6:55)

Judge can’t dismiss SORA charges or order ISP to remove a person from the sex offender registry.

Background

Defendant registered a change of address with the Joliet Police Department, listing his address as 614 Madison Street, Joliet, Illinois. Defendant registered at that same address again on April 30, 2013, July 30, 2013, October 30, 2013, and January 30, 2014. Each time defendant registered in 2013 and 2014, he signed and acknowledged the registration requirements that he must notify the Joliet Police Department within three days of a change of address and that he could be charged with a felony for providing false information.

Registration Check

On February 15, 2014, law enforcement conducted a routine sex offender registration check at 614 Madison Street, the last registered address defendant provided on January 30, 2014, and discovered that defendant no longer resided there. The resident of that address stated that he lived there with his wife and children. Further, the resident stated that although defendant did not live there, he allowed defendant to use the address as a mailing address. The resident stated that defendant did not keep any personal belongings at the address and that since October 30, 2013, defendant had stayed at the house three times and approximately 10 times in total.

Defendant Said

Subsequently, the police spoke to defendant, who stated that he was living with his girlfriend in Chicago half of the time and with the resident of the Joliet address, located at 614 Madison Street, the other half of the time.

The defendant also stated that he periodically removed his belongings from the Joliet address and moved his belongings elsewhere. However, defendant still believed he had some items at 614 Madison Street in Joliet.

Motion To Dismiss Charges

The judge granted defendant’s motion to dismiss his charges.

At the hearing, the trial judge recognized that according to the statute in effect in 1997, when a nonparent of a minor victim was convicted of the offense of unlawful restraint, these circumstances required the person convicted of unlawful restraint to register as a sex offender.

However, the judge noted that following the 2006 amendments to SORA, any person convicted of unlawful restraint would not be required to register as a sex offender unless the sentencing judge made an express factual finding, based on the evidence, that the offense of unlawful restraint was “sexually motivated.”

During the 2016 motion hearing, the judge remarked,

“That hardly seems fair, does it?…Well, if it was 1997, I would not be able to find based on what I have here that it was sexually motivated. It was the sole count of the Indictment, unlawful restraint. So if the law is what it is today that finding wouldn’t have been made based upon what I have here. So he wouldn’t have been required to register as a sex offender. He was 17. He gets all the detriments of the new law, but he gets none of the benefits. I am gonna grant your motion.”

Then the judge signed an order directing the state police to remove Defendant from the sex offender registry.

The trial court granted defendant’s motion to dismiss the indictment because, in part, the trial judge did not make a finding that the unlawful restraint “was sexually motivated as defined in Section 10 of the Sex Offender Evaluation and Treatment Act.”

The Old Law

At the time of defendant’s 1997 conviction for unlawful restraint, section 2(B)(1.5) of SORA (730 ILCS 150/2(B)(1.5)) defined “sex offense” as a felony offense of unlawful restraint “when the victim is a person under 18 years of age, the defendant is not a parent of the victim, and the offense was committed on or after January 1, 1996.”

According to the statutory scheme in 1997, following defendant’s guilty plea to the offense of unlawful restraint in Will County, defendant was statutorily required to register as a sex offender for a period of 10 years after his 1997 conviction. See 730 ILCS 150/3, 7.

In addition, defendant was convicted of a violation of SORA in 2001. This 2001 conviction occurred after section 7 of SORA was amended to add a provision requiring the director of the Illinois State Police to administratively extend a sex offender’s registration period by an additional 10-year time period for any sex offender who failed to comply with the requirements of SORA.

The New Law

Both parties agree that when defendant was charged with failing to register as a sex offender in this case in 2014, section 2(B)(1.5) of SORA defined “unlawful restraint” as a sex offense only

“when the victim is a person under 18 years of age, the defendant is not a parent of the victim, the offense was sexually motivated as defined in Section 10 of the Sex Offender Evaluation and Treatment Act, and the offense was committed on or after January 1, 1996.”

730 ILCS 150/2(B)(1.5).

After the 2006 amendment to SORA, a person convicted of unlawful restraint is not considered a sex offender for the purpose of SORA unless the sentencing judge made a finding that the offense was sexually motivated.

Case Law

Applying the principles of due process, the trial court dismissed the indictment because the definition of sex offender changed from 1997 to 2006.

However, existing case law does not support the trial court’s decision to dismiss the indictment on this basis.

The Illinois Supreme Court has addressed this exact issue in People v. Johnson, 225 Ill. 2d 573 (2007). However, the Johnson court held that even though amended section 2(B)(1.5) applies retroactively, such retroactivity does not automatically remove defendant from the sex offender registry.

The court explained that “the Act is not self-executing” and “does not provide for a fresh judicial determination of whether an offense that placed a person on the sex offender registry before June 27, 2006, was sexually motivated.”

Thus, our supreme court held section 86 of the Violent Offender Against Youth Registration Act provided no relief to Johnson.

The “Transfer” Provision

The supreme court concluded that the defendant’s only recourse was the transfer provision contained in section 11 of the Violent Offender Against Youth Registration Act. Pub. Act 94-945 (eff. June 27, 2006) (adding 730 ILCS 154/11).

Yet, the court recognized section 11 of the Violent Offender Against Youth Registration Act gives the State’s Attorney’s Office in the county in which the offender was convicted the sole discretion to recommend the removal of a convicted offender’s name from the sex offender registry in order to transfer the convicted offender’s name to the newly enacted child murderer and violent offender against youth registry.

In short, our supreme court concluded that under similar circumstances to those present in the case at bar, Johnson’s name must remain on the sex offender registry “because Public Act 94-945 offer[ed] him no way off of it.”

Analysis

Because defendant fit SORA’s definition of a sex offender in 1997, his name must remain on the sex offender registry until he completes the original 10-year term for registration or any other extensions of that original term arising from his 2001 conviction, which preceded the 2006 amendment to SORA.

Further, we must state the obvious.

Namely, we emphasize that the State has the obligation to prove that defendant was continually subject to the registration requirements of SORA until the time of the charged offense in 2014.

Holding

However, for the reasons discussed below, we hold the trial court erroneously and prematurely evaluated the State’s ability to establish defendant was required to register as a sex offender in 2014, a necessary element of the indicted offense.

The reviewing court said both provisions of the singular written order dismissing the indictment and removing defendant from the sexual offender registry must be reversed.