People v. Jackson, 2017 IL App (3d) 150154 (September). Episode 411 (Duration 11:31)

Again, State charges under the wrong SORA provision.

Charges

The State charged the defendant with “Unlawful Failure to Register as a Sex Offender.”

The information alleged that: 

“defendant, a sex offender required to register every 90 days, knowingly failed to register in accordance with the provisions of the Sex Offender Registration Act with the chief of police of Galesburg, Illinois, within 90 days of his last registration on November 12, 2013, after having been convicted of Unlawful Failure to Register as a Sex Offender in Knox County Case 08 CF 402 in violation of 730 ILCS 150/3(b).”

Facts

The defendant admitted that he failed to register by February 10, 2014, because he believed he had a 10-day grace period.

Ultimately, the circuit court found the defendant guilty and sentenced the defendant to three years’ imprisonment.

Issue

On appeal, the defendant argues that his conviction is void because the State failed to charge him with an offense.

The defendant argues deficiencies in the charging instrument render his conviction void for lack of jurisdiction. The State concedes the information erroneously cited section 3 of the Act (730 ILCS 150/3(b)), while the factual allegations made in the information describe a violation of section 6 of the Act (730 ILCS 150/6).

In addition, the State concedes the information used the word “register” instead of “report” as defined in section 6 of the Act (730 ILCS 150/6).

However, the State argues that these deficiencies do not render the defendant’s conviction void.

Form Of Charge

Section 111-3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/111-3) requires that the charging instrument cite

the statutory provision alleged to have been violated.

However, “the mere reference in a charging instrument to an incorrect chapter or section of a statute is regarded as a formal rather than a substantive defect.” People v. McBrien, 144 Ill. App. 3d 489, 495 (1986).

Duty to Report. 730 ILCS 150/6

The language of the information made clear the defendant was being accused of a violation of section 6 of the Act.

Section 6 requires a sex offender to report to a law enforcement agency “no later than 90 days after the date of his or her last registration.”

730 ILCS 150/6.

The information alleged that the defendant

“failed to register in accordance with the provisions of the Sex Offender Registration Act with the chief of police of Galesburg, Illinois, within 90 days of his last registration on November 12, 2013 *** in violation of 730 ILCS 150/3(b).”

Duty To Register. 730 ILCS 150/3

Section 3 of the Act requires sex offenders to register

“within 3 days of beginning school, or establishing a residence, place of employment, or temporary domicile.” 

730 ILCS 150/3(b).

Timing Of The Challenge

Formal defects do not require reversal unless the defendant establishes prejudice from the defect.

Only where the defendant demonstrates prejudice will the mere fact that a criminal complaint contains an incorrect citation to the criminal statute be grounds for dismissal of the conviction.

It is well-settled that where a charging instrument is challenged in a pretrial motion, the charging instrument will be dismissed if it does not strictly comply with the requirements of section 111-3 of the Code. E.g., People v. Rowell, 229 Ill. 2d 82, 93 (2008).

It is equally well settled that where an indictment is challenged for the first time on appeal, a defendant must show prejudice in the preparation of his defense. People v. Davis, 217 Ill. 2d 472, 479 (2005).

In that context, an information will be deemed

“sufficient if it apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.”

Analysis

In this case, the defendant is raising a challenge to the charging information for the first time on appeal.

He is therefore required to show resulting prejudice in the preparation of his defense.

The defendant, however, has put the full force of his argument on appeal behind the legal theory that his conviction is void and he is not obligated to show prejudice in the preparation of his defense. He makes no alternative argument that he actually did suffer prejudice.

In any event, the record would contradict any such argument.

Obvious It Was 150/6

Despite the erroneous citation and the mistaken use of the term “register” rather than “report,” it is clear from the facts described in the information that the defendant was being charged with a violation of section 6 rather than section 3.

No Prejudice

More importantly, while the defendant argues that the term “register” and “report” have different meanings under the Act, we fail to see how the mistaken use of these terms prejudiced the defendant in preparing his defense.

The defendant admitted that he knew he was required to appear at the police department every 90 days. He also admitted that he failed to appear at the police department before the 90-day period expired because he mistakenly believed he was entitled to a 10-day grace period.

In other words, the defendant’s entire defense revolved around whether he knowingly violated section 6 of the Act based on his mistaken belief.

The defendant fails to explain how his defense would have changed had the information used the term “report” rather than “register.”

Holding

Reversal of the defendant’s conviction, therefore, is unwarranted.

Although the defendant was not “perfectly” charged, he was “properly” charged.

JUSTICE McDADE, Specially Concurring.

I have two specific concerns with the current iteration of SORA pertinent to this appeal.

First, its reach is incredibly broad.

Specifically, the legislature has failed to include any provision to narrow the scope of its application by distinguishing between those offenders who are likely to reoffend and those who are not. In other words, critically absent from SORA is any mechanism by which a former offender can be exempted from its restrictions by showing that he or she is not a significant risk to reoffend.

Without such a mechanism, all offenders will be equally burdened, despite the fact that some pose little or no threat to children or others.

Second, the constant narrowing of the registration requirements in SORA make it nearly impossible, over the course of a lifetime (for some offenders), to maintain faithful compliance with the law.

As a consequence of the above restrictions, a released offender is severely impeded in his or her ability to find employment, decide where to live, have free access to public spaces and move freely throughout the state or country. In other words, these provisions make it nearly impossible for an offender to reintegrate normally into society after serving their prison term.

Even so, I am compelled to express my concern that an increasingly restrictive SORA has moved in a direction that is at odds with not only the basic foundational principles of our constitution:

In sum, I believe the legislature has failed to equitably balance the various human interests impacted by SORA.

See Also

Episode 399 – The Old Insufficient Complaint Booby Trap Is Finally Dismantled