No. 3--97--0885

December 31, 1998

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The defendant, Carl Logan, appeals from the April 17, 1997, order of the circuit court of Du Page County denying his motion to dismiss his indictment which charged him with the offense of unlawful failure to register as a sex offender (730 ILCS 150/3 (West 1996)). Following a bench trial, he was convicted of the charged offense and was sentenced to 60 days' imprisonment and 30 months' probation. He now appeals, arguing that the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West Supp. 1997)) and the Sex Offender and Child Murderer Community Notification Law (730 ILCS 152/101 et seq. (West Supp. 1997)) are unconstitutional in that they (1) violate the ex post facto clauses of the United States and Illinois Constitutions; (2) constitute bills of attainder; (3) violate his right to due process; (4) violate the terms of his plea agreement; (5) are fundamentally unfair; and (6) violate his right to privacy.

I. FACTS

On October 2, 1996, the defendant was charged by indictment with the offense of unlawful failure to register as a sex offender (730 ILCS 150/3 (West 1996)). The indictment alleged that the defendant failed to register as a sex offender within 30 days of moving to Westmont. On December 2, 1996, the defendant filed a motion to dismiss his indictment, raising essentially the same issues noted above. According to the defendant's motion, he was convicted of a sex offense in 1990 and was subsequently sentenced to the Department of Corrections. He was released from prison in 1992. The defendant argued that, although the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1996)) was enacted after his conviction, he was nonetheless required to register under its provisions.

Following a hearing, the trial court denied the defendant's motion to dismiss the indictment. In so ruling, the trial court relied upon People v. Adams, 144 Ill. 2d 381 (1991), wherein the Illinois Supreme Court upheld the Habitual Child Sex Offender Registration Act (Ill. Rev. Stat. 1987, ch. 38, pars. 221 through 230) against an eighth amendment and due process challenge. The trial court also noted that, in People v. Starnes, 273 Ill. App. 3d 911 (1995), the Illinois Appellate Court, First District, upheld the retroactive application of the Child Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1994)) after determining that the act did not impose an unconstitutional restraint on liberty or property.

On August 26, 1997, the defendant was convicted of the offense of unlawful failure to register as a sex offender. Following the denial of his posttrial motion, the defendant filed a timely notice of appeal.

II. REVIEW OF THE REGISTRATION ACT AND NOTIFICATION LAW

A. The 1986 Registration Act

The legislature enacted this state's first sex offender registration law in 1986 and has since amended the law several times. The first registration law enacted in 1986 was entitled the Habitual Child Sex Offender Registration Act (Habitual Registration Act) (Ill. Rev. Stat. 1987, ch. 38, pars. 221 through 230). The Habitual Registration Act required the registration of any person who, after July 1, 1986, was convicted of at least two sex crimes against a victim under the age of 18. Ill. Rev. Stat. 1987, ch. 38, pars. 221 (A), (B)(1), 223.

Our supreme court considered the constitutionality of the Habitual Registration Act in People v. Adams, 144 Ill. 2d 381 (1991). In Adams, the defendant argued that the registration requirements denied him his right to due process and constituted cruel and unusual punishment in violation of the eighth amendment. Adams, 144 Ill. 2d at 385-86. The court rejected the defendant's due process argument, holding that the registration requirements provided a reasonable method of accomplishing the legislature's desired objective of protecting children. Adams, 144 Ill. 2d at 390.

In addition, the supreme court also rejected the defendant's eighth amendment argument, holding that the registration requirement did not constitute cruel and unusual punishment. Adams, 144 Ill. 2d at 389. In so ruling, the supreme court noted that the legislative history of the act indicated that its purpose was to protect children and was therefore nonpenal. Adams, 144 Ill. 2d at 387. Moreover, the court explained that the registration requirement was not severe in comparison to the potential alternative of spending an extended period of time in prison. Adams, 144 Ill. 2d at 387-88. The court therefore concluded that the Habitual Registration Act did not constitute cruel and unusual punishment under the eighth amendment. Adams, 144 Ill. 2d at 389.

B. The 1993 Registration Act

Effective January 1, 1993, the Habitual Registration Act was amended, and its title became the Child Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1994)). This act required the registration of (1) all child sex offenders who, after July 1986, had been convicted of at least two sex crimes; or (2) any person, who after January 1, 1993, had been convicted of a first sex offense against a victim under the age of 18. 730 ILCS 150/2, 3 (West 1994).

In People v. Starnes, 273 Ill. App. 3d 911 (1995), the defendant argued that the registration requirements of the Child Sex Offender Registration Act constituted punishment in violation of state and federal ex post facto clauses. Starnes, 273 Ill. App. 3d at 913. In 1994, the defendant in Starnes was convicted of a sex offense which took place from 1990 to 1991. Starnes, 273 Ill. App. 3d at 912. The defendant argued that, at the time of the offense, the Habitual Registration Act required registration only after conviction of a second offense. However, because he was convicted of the sex offense after the effective date of the Child Sex Offender Registration Act, he was required to register after conviction of a first offense. Starnes, 273 Ill. App. 3d at 913.

On appeal, the Appellate Court, First District, determined that the defendant had waived his ex post facto argument as he failed to raise the issue in the trial court. Starnes, 273 Ill. App. 3d at 914. Notwithstanding this determination, the court stated that, even if the issue had not been waived, the defendant would not prevail as the registration provisions did not constitute punishment in violation of the ex post facto clause. Starnes, 273 Ill. App. 3d at 915. The court in Starnes noted that the Child Sex Offender Registration Act only required a convicted child sex offender to fill out a form informing police of his address and determined that such a requirement did not constitute punishment. Starnes, 273 Ill. App. 3d at 915.

In addition, the court noted that a defendant did not have an absolute right to be tried or sentenced under the law as it existed at the time of the offense. Starnes, 273 Ill. App. 3d at 915. The court explained that statutes imposing some collateral consequence upon a conviction may be applied retroactively if their purpose is not to punish the offender but to protect some other legitimate public interest. Starnes, 273 Ill. App. 3d at 915. Since the statute at issue was designed to aid law enforcement agencies, the court concluded that its provisions could be applied retroactively. Starnes, 273 Ill. App. 3d at 915.

C. The 1996 and 1997 Registration Act and Notification Law

The legislature further modified the registration requirements under the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1996)), which became effective January 1, 1996. Unlike its predecessors, this act applied retroactively to all sex offenders, as defined by the statute. 730 ILCS 150/2 (West 1996). In addition, the legislature enacted the Child Sex Offender and Murderer Community Notification Law (730 ILCS 152/101 et seq. (West 1996)), which became effective June 1, 1996.

Effective July 24, 1997, the legislature made further amendments to the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West Supp. 1997)). In addition, the Child Sex Offender and Murderer Community Notification Law was repealed, and the Sex Offender and Child Murderer Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West Supp. 1997)) became effective. The defendant herein fails to cite to the amended version of the Registration Act and instead only cites the repealed version of the Notification Law. However, as the recently amended version of the Registration Act and the newly enacted Notification Law have retroactive application to all sex offenders as defined by the Registration Act, we will focus our discussion on the constitutionality of these statutes as amended.

1. Persons Covered by the Registration Act

The Registration Act requires all sex offenders, as defined by the Act, to register within 10 days of establishing a residence or domicile in any county for more than 10 days. 730 ILCS 150/3(b) (West Supp. 1997). The category of sex offenders includes any person who is convicted of a sex offense or who is certified as a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 1996)). 730 ILCS 150/2(A)(1)(a), (2) (West Supp. 1997). "Sex offenses" include, for example, criminal sexual assault, child pornography, indecent solicitation of a child, and criminal sexual abuse. 730 ILCS 150/2(B)(1) (West Supp. 1997).

2. Registration

Under the Registration Act, any sex offender convicted or adjudicated prior to January 1, 1996, whose liability for registration had not yet expired was required to register prior to January 31, 1996. 730 ILCS 150/3(c)(2) (West Supp. 1997). All sex offenders convicted on or after January 1, 1996, are required to register in person within 10 days after the entry of the sentencing order. 730 ILCS 150/3(c)(3)(West Supp. 1997). Any convicted sex offender who is unable to comply with the registration requirements because he is confined, institutionalized, or imprisoned on or after January 1, 1996, is required to register within 10 days of discharge, parole, or release. 730 ILCS 150/3(c)(4) (West Supp. 1997).

The registrant must provide identification and documentation that substantiates proof of residence at the registering address and must pay a $10 initial registration fee and a $5 annual renewal fee. 730 ILCS 150/3(c)(5), (c)(6) (West Supp. 1997). In addition, the registrant must provide a written and signed statement, and registration may also include the registrant's fingerprints and photograph. 730 ILCS 150/8 (West Supp. 1997).

Section 6 of the Registration Act provides that any person who has been (1) adjudicated to be sexually dangerous and is later released or (2) found to be no longer sexually dangerous and discharged must report in person to the law enforcement agency with whom he last registered no later than 90 days after the date of his last registration and every 90 days thereafter for the period of his or her natural life. 730 ILCS 150/6, 7 (West Supp. 1997). All other registrants must report to the appropriate law enforcement agency on a yearly basis for a period of 10 years after conviction or adjudication. 730 ILCS 150/6, 7 (West Supp. 1998). In addition, all registrants must provide the law enforcement agency with whom they last registered with written notice of any change of address. 730 ILCS 150/6 (West 1996). Under section 10 of the Registration Act, the failure to comply with the Registration Act is a Class 4 felony. 730 ILCS 150/10 (West Supp. 1997).

3. Community Notification

Under section 120 of the Notification Law, the sheriff of the county in which the registrant resides is required to disclose to certain institutions the registrant's name, address, date of birth, and offense or adjudication. 730 ILCS 152/120 (West Supp. 1997). These institutions include schools, child care facilities, and the Department of Children and Family Services. 730 ILCS 152/120 (a)(2), (a)(3), (a-4) (West Supp. 1997).

Furthermore, the Department of State Police and any law enforcement agency having jurisdiction may, at its discretion, disclose to any person likely to encounter a registered sex offender the following information: (1) the registrant's name, address, and date of birth; (2) the offense of which he was convicted; and (3) his adjudication as a sexually dangerous person. 730 ILCS 152/120(b) (West Supp. 1997). In addition, the registrant's name, address, date of birth, and offense or adjudication is open to inspection by the public according to procedures set by the municipal police department or sheriff. 730 ILCS 152/120(c) (West Supp. 1997). Moreover, the Notification Law provides that the Department of State Police shall establish and maintain a sex offender database. 730 ILCS 152/115 (West Supp. 1997).

III. EX POST FACTO ANALYSIS

The defendant first contends that the retroactive application of the Registration Act and the Notification Law violates the ex post facto clauses of the United States Constitution (U.S. Const., art. I,