People v. Bingham, 2018 IL 122008 (September). Episode 542 (Duration 9:17)

Appellate court has no jurisdiction to waive a sex offender registration requirement.

Gist

Defendant took some pallet from the back of a Kmart and was charged with a class 4 felony theft. He had some nasty criminal history which triggered the collateral consequence of his having to register as a sex offender.

New Registration Requirement

Turns out defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to serve four years in prison.

At the time of his conviction in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. It was enacted in 1986 and then amended in 2011 to provide that

“[a] sex offender or sexual predator, who has never previously been required to register under this Act, has a duty to register if the person has been convicted of any felony offense after July 1, 2011.”

730 ILCS 150/3(c)(2.1) (West 2012). Thus, defendant’s 2014 felony theft conviction now requires him to register as a sex offender under SORA.

Issue

Defendant argues that the registration requirement of the Act is unconstitutional as applied to him on substantive due process grounds and violates ex post facto principles.

Jurisdiction

In criminal cases, “[a] notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts of judgments specified in the notice.” (Emphasis added.) People v. Lewis, 234 Ill. 2d 32, 37 (2009).

Under Illinois Supreme Court Rule 615(b) (eff. Jan. 1, 1967), the scope of appellate review is defined by the trial court’s judgment and the proceedings and orders related to it:

“On appeal the reviewing court may:

(1) reverse, affirm, or modify the judgment or order from which the appeal is taken;
(2) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken;
(3) reduce the degree of offense of which the appellant was convicted;
(4) reduce the punishment imposed by the trial court; or
(5) order a new trial.”

Analysis

In the proceedings before the appellate court in this case, that court was not called upon to exercise any of the above delineated powers with respect to defendant’s argument that sex offender registration is unconstitutional as applied to him.

The requirement that defendant register as a sex offender is not encompassed within the judgment or any order of the trial court. Thus, defendant’s argument did not ask a reviewing court to reverse, affirm, or modify the judgment or order from which the appeal is taken. Nor did it ask to set aside or modify any “proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.” Ill. S. Ct. R. 615(b)(2) (eff. Jan. 1, 1967).

The requirement that defendant register as a sex offender cannot be fairly characterized as a “proceeding.”

It’s Punishment

Defendant argues that the requirement to register is “punishment,” but even if that were true, it would not be “punishment imposed by the trial court.”

Holding

We find that none of the criteria of Rule 615(b) for invoking the powers of a reviewing court have been satisfied in this case. Accordingly, we conclude that a reviewing court has no power on direct appeal of a criminal conviction to order that defendant be relieved of the obligation to register as a sex offender when there is neither an obligation to register imposed by the trial court nor an order or conviction that the defendant is appealing that is directly related to the obligation or the failure to register.

A contrary rule would permit appeal of collateral issues on direct appeal from a criminal conviction not only to sex offender obligations but to a host of other collateral consequences of convictions that are not imposed by trial courts and are not embodied in their judgments.

Because this is not the proper forum for defendant to raise his claims and because an as-applied constitutional challenge may not be raised where it is litigated for the first time on review, we vacate the portion of the appellate court’s judgment that addressed defendant’s constitutional claims on the merits, and we now dismiss defendant’s appeal.

Examples

Such consequences would likely include “the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”

Allowing defendants to challenge the collateral consequences of a conviction on direct appeal would place a reviewing court in the position of ruling on the validity (or resolving the details) of regulatory programs administered by state agencies and officials that are not parties to the action.

Another Cause Of Action Is More Appropriate

Defendant has the heavy burden of overcoming the strong judicial presumption in favor of the constitutionality of the statute he seeks to challenge.

Neither the trial nor the sentencing hearings in this case allowed for the development of the record with a view to litigating a challenge to defendant’s sex offender registration obligation. Indeed, that obligation was not even mentioned in the trial court proceedings. 

See Also

• Illinois Sex Offender Registration (SORA) Resource Page
• Episode 408 – People v. McClenton – Judge Can’t Order State Police To Remove Person From Sex Offender Registry
• People v. Kochevar, 2018 IL App (3d) 140660 (August). Episode 527 (Duration 8:40) (Another As Applied Challenge Results In An 18-Year Old Who Does Not Have To Register)
• People v. Tetter, 2018 IL App (3d) 150243 (January). Episode 463 (Duration 8:43) (Successful Constitutional Challenge To SORA And Its Progeny Finds It To Be Punishment)
• Episode 449 – In re T.J.D. – The “No Risk” v. “Low Risk” Conundrum 
• Episode 321 – People v. Pearse – SORA is One Big Bloody Mess Says Illinois Supreme Court
• Episode 322 – People v. Gomez – State Failed To Prove Defendant Was Living In The City – Failure To Register Reversed
• Episode 386 – Packingham v. North Carolina – North Carolina Law Forbidden Sex Offenders From Going Online Stricken Down
• Episode 406 – People v. Jones – In A SORA Prosecution The Duty To Register Must Be Proven By The State
• Episode 407 – In re B.G. – Right To Petition To Terminate Obligation To Register As A Sex Offender Survives After A Subsequent Conviction
• Episode 411 – People v. Jackson – SORA SORA No Time Is A Good Time For Goodbyes