                                  Illinois Official Reports

                                          Appellate Court



                               People v. Roe, 2015 IL App (5th) 130410



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee v.
Caption                      BRIAN ROE, Defendant-Appellant.


District & No.               Fifth District
                             Docket No. 5-13-0410


Filed                        January 6, 2015
Rehearing denied             January 23, 2015


Held                         Although the charging instrument in defendant’s case made reference
(Note: This syllabus         to defendant’s failure to register as a sex offender within three days of
constitutes no part of the   his conviction rather than within three days of his discharge, parole, or
opinion of the court but     release from incarceration, defendant’s due process rights were not
has been prepared by the     denied, and even if defendant’s indictment was found not to have
Reporter of Decisions        specifically apprised defendant of the charge against him, that is,
for the convenience of       failing to register as a sex offender within three days of his release
the reader.)                 from incarceration, the variance did not warrant reversing defendant’s
                             conviction, since it was not material, misleading, or likely to expose
                             defendant to the possibility of double jeopardy; therefore, his claim
                             that his right to due process was violated by his “conviction for a
                             charge not made” was rejected and his conviction was affirmed.




Decision Under               Appeal from the Circuit Court of Williamson County, No. 13-CF-175;
Review                       the Hon. John Speroni, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Michael J. Pelletier, Ellen J. Curry, Sara D. Parrish, and Alexander G.
     Appeal                    Muntges, all of State Appellate Defender’s Office, of Mt. Vernon, for
                               appellant.

                               Charles Garnati, State’s Attorney, of Marion (Patrick Delfino,
                               Stephen E. Norris, and Sharon Shanahan, all of State’s Attorneys
                               Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                     JUSTICE WELCH delivered the judgment of the court, with opinion.
                               Justices Stewart and Schwarm concurred in the judgment and opinion.


                                                 OPINION

¶1         The defendant, Brian Roe, was charged by amended information with failure to register as
       a sex offender in accordance with the Sex Offender Registration Act (the Act) (730 ILCS 150/1
       et seq. (West 2012)). The defendant was found guilty at a stipulated bench trial. On appeal, the
       defendant argues that the State failed to present any evidence that he “failed to register within
       three days of his conviction as charged in the information,” yet he was convicted for failing to
       register within three days of his release from the Department of Corrections. The defendant
       asserts that the “conviction for a charge not made” is a violation of his constitutional right to
       due process. For the following reasons, we affirm.
¶2         The defendant was arrested on April 16, 2013. An information filed on April 17, 2013,
       asserted in count I that the defendant failed to report a change of address in violation of the Act,
       having previously been convicted of failure to report a change of address in Williamson
       County. Count II asserted that he failed to register as a sex offender with the county sheriff or
       city police department of his residence in violation of the Act. The first count was dismissed at
       a preliminary hearing on May 13, 2013. The court found probable cause existed on the second
       count, as there was evidence he was living in Carterville as early as March and the defendant
       did not report “anything[,] anywhere.”
¶3         The amended information, filed May 28, 2013, asserted that on April 16, 2013, the
       defendant “committed the offense of failure to register as a sex offender” where he “knowingly
       failed to register, in accordance with the provisions of the Child Sex Offender Registration
       Act, with the County Sheriff or City Police Department of his residence as required within
       three days of his conviction, and having been previously convicted of Failure to Report Change
       of Address, in Williamson County cause 11-CF-412, on December 2, 2011. [sic] in violation of
       Chapter 730, Act 150, Section 6, Illinois Compiled Statutes.”
¶4         At the defendant’s July 30, 2013, stipulated bench trial, the State requested that the court
       take judicial notice of the defendant’s conviction in Williamson County cause number
       11-CF-412, wherein the defendant admitted to failing to register as a sex offender on
       September 3, 2011, and was sentenced to two years in the Illinois Department of Corrections.
       The State also asked the court to recognize a conviction of criminal sexual abuse from Union


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     County, which began the required registration period for the defendant. The State asserted that
     it would present evidence that the defendant was listed as homeless and as a noncompliant sex
     offender in the Illinois State Police reports because he was released from his two-year
     imprisonment on March 5, 2013, and he had not registered after his release. The State noted
     that a reporting agent would testify that she received information on the defendant’s
     whereabouts, and upon finding him at an acquaintance’s house, the defendant came willingly
     and stated that “it’s better this way.” The State would then show that the defendant was taken
     into custody on April 16, 2013, because he had not registered since being released from the
     Department of Corrections, as was required for him on a weekly basis due to his “homeless”
     status. The court asked the defendant if he concurred “not that [he] necessarily agree[d] with
     [the State’s evidence],” but that the above information was the evidence that the State would
     present at his trial. The defendant stipulated to the State’s evidence. The defendant then read a
     statement he had prepared regarding the difficulty of adhering to the sex offender registration
     requirements and asserting that the requirements are unconstitutional.
¶5        The court requested argument from both parties. The State asserted that the statute is
     constitutional, and the defendant was “well-aware” of his requirement to register within three
     days of being released and to reregister every seven days due to his status as a homeless
     offender. The defendant’s counsel replied that the defendant felt that he was not guilty, as it
     was his belief “that he cannot possibly comply with [the Act’s requirements].” The defendant
     was found guilty of failure to register as a sex offender as set forth in the amended count. The
     court concurred with the parties’ agreed-upon sentencing determination, and the defendant was
     sentenced to four years in the Illinois Department of Corrections and two years of mandatory
     supervised release.
¶6        On appeal, the defendant argues that the State did not prove that he failed to register as a
     sex offender “within three days of his conviction,” which is “an essential fact necessary to
     constitute the crime with which he was charged.” Specifically, he asserts that the State charged
     him with failure to register within three days of his conviction, but the evidence presented at
     trial did not support a conviction on that charge. Rather, the defendant argues, the State’s
     evidence demonstrated that he failed to register as a sex offender after he was released from
     prison on March 5, 2013. The defendant requests that this court reverse his conviction because
     the State did not prove the elements of the charged offense beyond a reasonable doubt and
     because his conviction amounts to an arbitrary deprivation of liberty that violates his
     constitutional right to due process. The State responds that the sex offender registration statute
     must be read as a whole, and that the difference between the charge and the proof is a nonfatal
     variance which does not affect the outcome of the trial. We agree with the State’s reasoning in
     the instant case.
¶7        We begin by noting two important points that have been acknowledged by both parties:
     first, that the “duty to register” (730 ILCS 150/3 (West 2012)) and the “duty to report; change
     of address” (730 ILCS 150/6 (West 2012)) provisions of the Act are considerable and complex,
     and second, that a citation to the statute for which proof was offered at the defendant’s trial,
     i.e., his duty to register within three days of his release from incarceration pursuant to section
     3(c)(4) (730 ILCS 150/3(c)(4) (West 2012)), does not appear in the defendant’s charging
     instrument.
¶8        The defendant argues that the State’s response is inapposite, as he “has not made a variance
     argument.” However, Illinois case law indicates that his argument–that he was denied due

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       process of law where he was “convicted of a charge not made”–is indeed an argument as to the
       existence of a fatal variance between the charging instrument and the evidence presented. See
       People v. Borst, 162 Ill. App. 3d 830, 834 (1987) (wherein the court analyzed the defendant’s
       argument–that he was denied due process where he was convicted of a charge not made under
       Illinois law–as an assertion of a fatal variance, concluding that even if the court accepted that
       the statute set forth two disparate and alternative methods of committing the offense, thus
       creating a variance between the complaint and the proof, no reversible error existed where the
       variance did not meet the requirements to be found fatally defective).
¶9          We thus consider the defendant’s appeal under the fatal-variance framework. A person
       may not be convicted in a state court except upon proof beyond a reasonable doubt of every
       fact necessary to constitute the crime with which he is charged. U.S. Const., amend. XIV; Ill.
       Const. 1970, art. I, § 2. Due process requires that an indictment must apprise a defendant of the
       precise offense with which he is charged, and a fatal variance between the instrument charging
       a defendant and the proof pursuant to which a defendant is convicted at trial requires reversal
       of the conviction. People v. Ligon, 365 Ill. App. 3d 109, 117 (2006). However, in order to be
       fatal, a variance between the charging instrument and the poof at trial must be material and of
       such character that it misleads the accused in making his defense or exposes him to double
       jeopardy. People v. Arndt, 351 Ill. App. 3d 505, 518 (2004).
¶ 10        To determine the existence of a fatal variance, then, we consider the plain and ordinary
       meaning of the language in the indictment as read and interpreted by a reasonable person. Id. at
       517. As noted above, the defendant was charged with failing to register “within three days of
       his conviction,” but the proof offered at his stipulated bench trial demonstrated that he failed to
       register “within three days of his release” from incarceration.
¶ 11        We read the statute at issue and the count charged together. Id. at 518. As we must read the
       charging instrument as a whole (id.), so must we construe the sex offender registration statute
       as a whole in order to avoid rendering any part of it meaningless or superfluous. People v.
       Marshall, 242 Ill. 2d 285, 292 (2011). The pertinent language is found in section 3 of the Act,
       which reads as follows:
                    “§ 3. Duty to register.
                                                     ***
                    (c) The registration for any person required to register under this Article shall be as
                follows:
                                                     ***
                        (3) Except as provided in subsection (c)(4), any person convicted on or after
                    January 1, 1996, shall register in person within 3 days after the entry of the
                    sentencing order based upon his or her conviction.
                        (4) Any person unable to comply with the registration requirements of this
                    Article because he or she is confined, institutionalized, or imprisoned in Illinois on
                    or after January 1, 1996, shall register in person within 3 days of discharge, parole
                    or release.” 730 ILCS 150/3(c)(3), (4) (West 2012).
¶ 12        In reading the language in the count and the statute together, then, we determine that the
       charging instrument’s reference to registering “within three days of his conviction” instead of
       “within 3 days of discharge, parole or release” does not constitute a denial of the defendant’s
       due process rights. Sections 3(c)(3) and 3(c)(4) must be interpreted as a whole, as the latter

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       provides a clear alternative to the former due to the impossibility of an imprisoned offender to
       fulfill the registration requirements under section 3(c)(3). Thus, when sections 3(c)(3) and (4)
       are read in conjunction with the language of the indictment, we find support for the contention
       that the defendant was properly charged with section 3(c)(4)’s functional equivalent since he
       was “unable to comply with the registration requirements *** because he *** [was]
       imprisoned” (730 ILCS 150/3(c)(4) (West 2012)).
¶ 13       However, even if we accept that the defendant’s indictment did not specifically apprise the
       defendant of the charge against him, we conclude that any variance between the charging
       instrument and the proof does not require reversal of the defendant’s conviction because it was
       not material, misleading, or likely to expose the defendant to the possibility of double
       jeopardy. See Arndt, 351 Ill. App. 3d at 518. The culpable act at issue is the defendant’s failure
       to register, and the stipulated facts reflect that the defendant was released from the Department
       of Corrections on March 5, 2013, and that he had not registered anywhere in the time leading
       up to his arrest. Moreover, the defendant’s attempted evasion of the reporting agents and his
       comments when he was arrested insinuate that he certainly understood the offense he had
       committed. We also do not believe that the defendant was misled in preparing his defense or
       that he would have prepared his defense differently if the language in the indictment had more
       specifically tracked the language of the statute. The defendant’s statement at his stipulated
       bench trial reflected that the defendant was aware that the charges against him were based on
       his failure to register after his release. At no point did the defendant express a
       misunderstanding of the charges or present an argument for impossibility based on his
       incarceration; rather, his assertions were based on the constitutionality of the statute and the
       difficulty of adhering to the Act’s requirements as a homeless person. Finally, the defendant
       could not be exposed to the possibility of double jeopardy. The statute required the defendant
       to register within three days of his release if he is otherwise unable to register due to his
       incarceration. See 730 ILCS 150/3(c)(3), (4) (West 2012). The relevant time period necessarily
       began on the day that he was released. The State cannot again charge the defendant for this
       time frame, and any attempt at a future prosecution could be forestalled by resort to the record
       of his prior prosecution on the same facts.
¶ 14       We note that the rationale behind our determination is whether the defendant was afforded
       sufficient notice of the charge against him and given a meaningful opportunity to defend
       himself against that charge. People v. McDonald, 401 Ill. App. 3d 54, 63 (2010). We therefore
       conclude that based on the information before us, any variance that may exist between the
       defendant’s charging instrument and the proof offered at his stipulated bench trial is not fatal to
       his conviction for failure to register as a sex offender pursuant to the Act. For these reasons, we
       affirm the judgment of the circuit court of Williamson County.

¶ 15      Affirmed.




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