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                               Appellate Court                             Date: 2016.02.18 08:59:13
                                                                           -06'00'




                   People v. Brock, 2015 IL App (1st) 133404



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



District & No.    First District, First Division
                  Docket No. 1-13-3404


Filed             November 23, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-14169; the
Review            Hon. Clayton J. Crane, Judge, presiding.



Judgment          Reversed in part; affirmed in part; vacated in part; remanded for
                  resentencing.


Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Deepa Punjabi, all of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Tasha-Marie Kelly, and Brian A. Levitsky, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE CUNNNINGHAM delivered the judgment of the court,
                  with opinion.
                  Presiding Justice Liu and Justice Harris concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Following a bench trial in the circuit court of Cook County, defendant Paul Brock was
     found guilty of failure to report in person within 90 days of his last date of registry and
     failure to report his change of address within 3 days as a registered sex offender in violation
     of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2012)), and sentenced as
     a mandatory Class X offender to six years of imprisonment. On appeal, the defendant
     contends that: (1) the evidence was insufficient to establish that he violated either provision
     of the Act; and (2) the trial court committed reversible error when it used his prior criminal
     conviction for aggravated criminal sexual assault as both an enhancement in sentencing him
     as a Class X offender and as an element of the charged offense, resulting in an improper
     double enhancement. For the following reasons, we affirm in part, reverse in part, and vacate
     in part the judgment of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3        The defendant was charged by indictment for failure to comply with the Act “on or about
     April 19, 2012 and continuing on through July 3, 2012” in that “having been previously
     convicted of aggravated criminal sexual assault under case number 94CR1711801,” the
     defendant (1) “knowingly failed to report, in person, to the law enforcement agency with
     whom he last registered *** [90] days from the date of such registration and every [90] days
     thereafter *** in violation of chapter 730 Act 150 section 6 of the Illinois Compiled Statutes
     1992,” and (2) “changed his address and knowingly failed to report, in writing, to the law
     enforcement agency with whom he last registered *** within three days of such change of
     address, *** in violation of chapter 730 Act 150 section 6 of the Illinois Compiled Statutes
     1992.” The indictment further charged that “the State shall seek to sentence [defendant] as a
     Class 2 offender because [he] was previously convicted of failure to register as a sex offender
     under case number 04CR2354101.”
¶4        The State’s evidence at trial showed that the defendant initially registered with the
     Chicago police department as a sex offender on January 19, 2012. Officer Cipun testified that
     during the defendant’s initial registration, defendant provided a state identification card that
     listed his address as 952 West 58th Street, Apartment 2, Chicago, Illinois. The defendant was
     informed, inter alia, that he must renew his registration every 90 days, that he must notify the
     police department in person of any change in address within three days of changing such
     address, and that his registration renewal date was April 18, 2012. The State introduced into
     evidence the defendant’s initial registration form, which is dated January 19, 2012 and
     contains his signature at the bottom of each page and his initials next to its various
     provisions. A copy of the state identification card he provided to officers during the January
     19, 2012 registration was also admitted into evidence.
¶5        On cross-examination, Officer Cipun testified that in accordance with the “logs” kept by
     the Chicago police department’s registration unit, the defendant appeared in person to renew
     his registration on April 18, 2012. However, because the defendant “did not have proof of
     address that is required by state law for registration,” he was unable to complete the
     registration process.
¶6        Officer Bell testified that on June 12, 2012, he was performing sex offender registration
     checks and went to 952 West 58th Street in search of the defendant. Officer Bell stated that

                                                -2-
       he did not see the defendant’s name on any of the mailboxes and knocked on every single
       door, but was unable to locate him.
¶7         Officer West testified that on July 3, 2012, he went to 11550 South Perry Avenue in
       Chicago to perform follow-up investigations on investigative alerts within his district. Officer
       West located the defendant at this address and asked for identification. The defendant
       produced a state identification card bearing the name and picture of the defendant and listed
       his address as 11550 South Perry Avenue. Officer West then placed the defendant under
       arrest.
¶8         On July 4, 2012, Detective Dubose conducted a custodial interview with defendant.
       During the interview, the defendant confirmed that he moved to his current address, 11550
       South Perry Avenue, in April 2012. On cross-examination, Detective Dubose acknowledged
       that the defendant told him during the interview that he was unable to register on April 20,
       2012, because he could not pay the $100 registration fee. The State then presented a certified
       copy of the defendant’s December 12, 1996 conviction for aggravated criminal sexual assault
       under case number 94 CR 1711801. The State then rested.
¶9         The defendant testified on his own behalf that he reported to the registration office on
       April 18, 2012, but was turned away because the identification he provided did not list his
       current address. He also testified that on April 20, 2012, he returned to the police station and
       attempted to register with his new state identification card, but was unable to do so because
       he could not pay the registration fee. The defendant stated that the police department gave
       him a two-month grace period to pay the fee, but he was unable to obtain the money and was
       subsequently arrested on June 30, 2012, released, and then arrested again on July 1, 2012 for
       failure to pay the registration fee. The defendant did not appear at the police station to
       register after April 20, 2012.
¶ 10       The trial court found the defendant guilty on both counts. During sentencing, the State
       argued that the defendant was subject to Class X sentencing due to his two prior felonies: a
       1994 conviction for aggravated criminal sexual assault (which was introduced by the State
       into evidence during trial and cited in the indictment), and a 1984 conviction for indecent
       liberties with a child. The trial court ultimately sentenced the defendant to the minimum six
       years of imprisonment under the Class X sentencing scheme. The defendant’s timely appeal
       follows.

¶ 11                                           ANALYSIS
¶ 12       The defendant first contends that the evidence was insufficient to prove his guilt beyond a
       reasonable doubt because he fulfilled his duty to report under section 6 of the Act when he
       appeared at the police station on April 18, 2012 and again two days later on April 20, 2012.
       In response, the State argues the evidence was sufficient because the section 6 reporting
       requirement also requires registration, and the evidence established that the defendant was
       unable to register.
¶ 13       Although the defendant phrases his contention as an evidentiary argument, the parties’
       arguments raise an issue of statutory construction. Consequently, in order to determine
       whether the evidence was sufficient to establish the defendant’s guilt, we must first
       determine what reporting or registration duties are required by section 6 of the Act.



                                                  -3-
¶ 14       The primary rule of statutory construction is to ascertain and give effect to the intent of
       the legislature. People v. Hanna, 207 Ill. 2d 486, 497 (2003); Hartney Fuel Oil Co. v. Hamer,
       2013 IL 115130, ¶ 25. The best evidence of legislative intent is the language of the statute
       which will be given its plain and ordinary meaning. People v. Tucker, 167 Ill. 2d 431, 435
       (1995); People v. Bole, 155 Ill. 2d 188, 197 (1993). Statutes are read as a whole, so that
       interpretation of a statute’s language does not render any part meaningless or superfluous,
       and its words and phrases are construed in light of other relevant provisions of the statute.
       People v. Ellis, 199 Ill. 2d 28, 39 (2002); In re Detention of Stranbridge, 2012 IL 112337,
       ¶ 70. Issues of statutory construction are reviewed de novo. People v. Robinson, 172 Ill. 2d
       452, 457 (1996).
¶ 15       The Act imposes two separate requirements on individuals who are subject to its
       provisions. See 730 ILCS 150/1 et seq. (West 2012). The first, outlined in section 3 of the
       Act, imposes a general duty to register on all sex offenders. 730 ILCS 150/3 (West 2012).
       The second, outlined in section 6 of the Act, is the duty to report. 730 ILCS 150/6 (West
       2012). The defendant argues that section 6 mandates only a reporting requirement. The State,
       however, argues that the statute requires “registrants to do more than simply appear at the
       registration office,” and, thus, where the “indictment states that defendant knowingly failed
       to report in person, it means that he failed to complete his registration requirements.”
¶ 16       The section of the statute under which defendant was charged specifically refers to
       individuals currently or previously deemed sexually dangerous (see 725 ILCS 205/1.01
       (West 2012)) or sexually violent persons (see 725 ILCS 207/5(f) (West 2012)) and outlines
       additional reporting and registration requirements (such as a duty to report in person every 90
       days) which do not appear under the section 3 general duty to register that is imposed on all
       sex offenders and sexual predators. See 730 ILCS 150/3, 6 (West 2012). The statute,
       therefore, imposes a separate and additional duty on those sex offenders specifically
       adjudicated “dangerous” or “violent,” and it is clear from the language of the statute that the
       legislature intended to distinguish a duty to report that does not simply duplicate the
       registration requirement.
¶ 17       For example, section 6 states, “[i]f any other person required to register under this Article
       changes his or her residence address *** he or she shall report in person, to the law
       enforcement agency with whom he or she last registered *** and register, in person, with the
       appropriate law enforcement agency within the time period specified in Section 3.”
       (Emphases added.) 730 ILCS 150/6 (West 2012). If the duty to report necessarily
       encompassed the duty to register, the change of address provision requiring a “report in
       person” would render the “register in person” clause superfluous. See In re Detention of
       Stranbridge, 2012 IL 112337, ¶ 70 (“[w]e must also avoid rendering any part [of the statute]
       meaningless or superfluous”). The language of the statute clearly distinguishes “report” and
       “register” and when it requires one, or both, it does so by expressly stating such requirement.
¶ 18       The statute defines registration, in part, as “a statement in writing signed by the person
       giving the information that is required by the Department of State Police.” 730 ILCS
       150/8(a) (West 2012). Therefore, in order to complete the registration process, a signed
       writing must be generated. Although report is not specifically defined in the Act, The
       American Heritage College Dictionary defines “report” as “to relate or tell about; to make or
       present an often official, formal, or regular account of.” The American Heritage College
       Dictionary 1158 (3d ed. 1992). Therefore, although related, one can “report” without

                                                   -4-
       registering, but may not “register” without reporting, because registration requires the
       creation of a signed writing.
¶ 19        Having construed the language of the statute, we turn now to the question of whether the
       defendant violated its provisions. Accordingly, we will address each count of the indictment
       in turn.
¶ 20        When a defendant challenges the sufficiency of the evidence to sustain his conviction, the
       relevant question on review is whether, after considering the evidence in the light most
       favorable to the State, any rational trier of fact could have found the essential elements of the
       crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011);
       People v. Collins, 106 Ill. 2d 237, 261 (1985). A conviction will only be overturned where
       the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable
       doubt of defendant’s guilt. Beauchamp, 241 Ill. 2d at 8.
¶ 21        In order to sustain a conviction under section 6 of the Act, the State must generally prove
       that (1) defendant was subject to the reporting requirements under the Act, and (2) defendant
       knowingly failed to report in person at the requisite reporting agency. See 730 ILCS 150/6
       (West 2012). This section further provides several manners in which a defendant may violate
       the in-person reporting provision including, in relevant part, (1) the failure to report in person
       within 90 days of the date of his last registration and/or (2) failure to report in person and
       register a change of address within three days of such change. Id.
¶ 22        The defendant first argues that the evidence was insufficient to establish his guilt of
       failure to report in person within 90 days where the evidence at trial established that he
       appeared in person at the police station on the ninetieth day as required but was unable to
       register due to lack of appropriate identification. The State’s argument at trial was identical
       to that on appeal–that the defendant violated the statute because he failed to complete a
       registration on the ninetieth day.
¶ 23        With regard to count I, section 6 mandates that any person deemed sexually dangerous or
       violent, must “report in person *** no later than 90 days after the date of his or her last
       registration and every 90 days thereafter.” (Emphasis added.) Id. The indictment alleged that
       the defendant violated this provision on April 19, 2012 and continuously until July 3, 2012,
       when he knowingly failed to report in person within 90 days.
¶ 24        Notably, this provision of the statute does not mention a registration requirement. As
       such, the defendant may satisfy his duty simply by reporting–and the evidence clearly
       established that the defendant’s actions were sufficient to satisfy the reporting requirement.
       Here, the defendant appeared in person at the Chicago police department on April 18, 2012,
       the ninetieth day after his initial registration, spoke with the registration officer, and provided
       a formal account of his whereabouts and other information in an attempt to register. A log
       was created by the Chicago police registration office memorializing the defendant’s
       appearance despite the defendant being turned away by the police without “registering”
       because he lacked the appropriate identification. Under these facts, we hold that no rational
       trier of fact could conclude that the defendant failed to report in person within 90 days within
       the meaning of the statute, and we therefore reverse the defendant’s conviction with regard to
       count I.
¶ 25        The defendant next argues that the evidence was insufficient to establish his guilt as
       charged under count II of the indictment for failure to report his change of address within
       three days of the date of such change.

                                                    -5-
¶ 26        The indictment charging defendant with the failure to report his change of address
       alleged that the defendant “committed the offense of violation of the Sex Offender
       Registration Act in that he, having been previously convicted of aggravated criminal sexual
       assault under case number 94CR1711801, changed his address and knowingly failed to
       report, in writing, to the law enforcement agency with whom he last registered *** within
       three days of such change of address, *** in violation of chapter 730 Act 150 section 6 of the
       Illinois Compiled Statutes.”
¶ 27        Notably, Public Act 94-166 (Pub. Act 94-166, § 5 (eff. Jan. 1, 2006) (amending 730
       ILCS 150/6 (West 2004))) replaced the writing requirement with in-person, thus it appears
       the defendant was indicted under an outdated version of the statute.1 Although we note a
       potential deficiency in the charging instrument, this issue has been forfeited2 and, thus, we
       turn to the relevant question of whether the defendant’s conduct violated the statute in effect
       at the time of the commission of the alleged offense.
¶ 28        Section 6 states, “[i]f any other person required to register under this Article changes his
       or her residence address *** he or she shall report in person, to the law enforcement agency
       with whom he or she last registered *** and register, in person, with the appropriate law
       enforcement agency within the time period specified in Section 3.” (Emphases added.) 730
       ILCS 150/6 (West 2012). Accordingly, the defendant violated section 6 of the Act if he failed
       to report and register, in person, his change of address within three days of the date he
       obtained a new residence.
¶ 29        The State presented Detective Dubose’s testimony that the defendant admitted that he
       moved in April 2012. In addition, evidence showed that the defendant’s last registration was
       completed on January 19, 2012, and by the time of his arrest on July 3, 2012, the defendant
       had not registered his new address. The State also produced evidence that on June 12, 2012,
       nearly two months after the defendant’s registration timeline expired, Officer Bell reported to
       the defendant’s previous address in search of him and was unable to locate the defendant on
       the premises. It was not until follow-up investigations were conducted by Officer West on
       July 3, 2012, that the defendant was located at his new address and subsequently arrested for
       violation of the Act. Therefore, his duty to report and register his change of address was not
       fulfilled, and we uphold his conviction under count II.
¶ 30        The defendant testified that after being turned away for lack of identification on April 18,
       2012, he returned two days later on April 20, 2012, with identification that contained his new
       address but was turned away a second time because he lacked the required registration fee.
       However, the trier of fact was not obligated to believe the defendant’s statement. See People

           1
             Although we determined the registration requirement under this provision requires a signed
       writing, a distinction can be made between “report in writing” and the current language of the statute.
       Although the result is the same (a writing is generated), the former frustrates the intent of the statute
       because it arguably could be satisfied by mailing a letter or document without an in-person appearance.
           2
             Defendant did not raise a challenge to the charging instrument either before or during trial or on
       appeal and has not shown prejudice; therefore, the issue is forfeited. See People v. Long, 55 Ill. App. 3d
       764, 771 (1977) (formal defect in indictment waived if timely challenge not made); People v. Sanchez,
       329 Ill. App. 3d 59, 68 (2002) (issues not argued in appellate brief deemed waived); People v. Phillips,
       215 Ill. 2d 554, 562 (2005) (defendant must show indictment prejudiced defendant in preparation of
       defense if challenged first time on appeal).

                                                       -6-
       v. Evans, 209 Ill. 2d 194, 211 (2004). Furthermore, that statement does not help the defendant
       since he did not return to attempt registration after April 20, 2012. Additionally, the
       defendant cannot point to a log by the registration office or any signed writing generated as a
       result of his alleged in person appearance on April 20, 2012 that would satisfy the
       registration requirement under section 6. In so finding, we leave for another day the question
       of whether a fee must be paid in order to register within the meaning of section 6 and, if so,
       what effect the alleged inability to pay has on compliance with the statute. In this case, the
       question of whether the defendant had the required fee necessary to register was not the crux
       of the statutory violation.3 As such, we cannot find the evidence to be so improbable that no
       rational trier of fact could have found the defendant guilty of knowingly failing to report and
       register his change of address within three days of such change, in clear violation of section 6
       of the Act.
¶ 31       Nonetheless, the defendant argues that the indictment did not allege that he failed to
       provide acceptable proof of address, a requirement found under section 3(c)(5) of the Act
       and, thus, this requirement should not be construed as an additional element under section 6
       of the Act. We reject this contention. As noted, section 6 states that whenever a person who
       is “required to register” under the Act changes his residence, he shall report and register in
       person with the appropriate law enforcement agency within the time period specified under
       section 3. See 730 ILCS 150/6 (West 2012). Registration of a change of address entails
       producing “positive identification and documentation that substantiates proof of residence at
       the registering address,” as set forth under section 3 (730 ILCS 150/3(c)(5) (West 2012)),
       which we must read together with section 6 as requiring the defendant to show positive proof
       of his new residence at 11550 South Perry Avenue. See In re Detention of Stranbridge, 2012
       IL 112337, ¶ 70; Ellis, 199 Ill. 2d at 39 (statutes are read as a whole, so that interpretation of
       the language does not render any part meaningless or superfluous, and the words and phrases
       are construed in light of other relevant provisions of the statute).
¶ 32       The defendant contends that, even had the proof of address requirement been alleged in
       the indictment, the State failed to prove that he did not meet this requirement. Pointing to
       Officer Cipun’s testimony, in which she stated that the defendant could not complete his
       registration on April 18, 2012 because he “did not have proof of address that is required by
       state law for registration,” the defendant argues that Officer Cipun failed to provide any
       details regarding what kind of proof the defendant did or did not produce to the registration
       office on April 18, 2012, or what she understood the requirements to be under the Act.
       Viewing the evidence in the light most favorable to the State, the court, as the trier of fact,
       was in the best position to observe the witnesses’ demeanor, determine their credibility, and
       weigh the evidence. It was within the province of the trier of fact to find Officer Cipun
       credible, and we will not disturb that determination on appeal. Further, at trial, the defendant
       admitted that he did not have his identification card bearing the new address when he
       appeared at the registration office on April 18, 2012. Thus, we conclude that a reasonable



           3
             Under the Act, “[t]he law enforcement agency having jurisdiction may waive the registration fee if
       it determines that the person is indigent and unable to pay the registration fee.” 730 ILCS 150/3(c)(6)
       (West 2012). We note that the defendant here made no further effort to explain his alleged lack of
       registration fee nor additional attempt to register after being turned away on April 20, 2012.

                                                      -7-
       trier of fact could have found that he lacked the documentation needed to satisfy the proof of
       address requirement under the Act.
¶ 33        The defendant next argues that even assuming that he had provided an identification card
       bearing his old address when he was turned away on April 18, 2012, the State still failed to
       show that he violated the Act. Specifically, he argues that because a sex offender must report
       in person and register a change of address within three days of such change, the State failed
       to establish when he moved and when the three-day clock began running. He points out that
       the State’s evidence only showed that he informed Detective Dubose during the police
       interview that he moved to his new residence in “April 2012.” From there, he argues that he
       plausibly could have moved to the new address on April 17, one day before he reported in
       person on April 18, and that his identification card bearing the old address could still have
       been valid because the three-day window for him to register his new address had yet to
       expire. Thus, he contends, the State failed to provide any satisfactory evidence that the police
       had a legal basis to turn him away when he reported in person on April 18, 2012. We find
       this argument to be unpersuasive, as it ignores the fact that the indictment alleged that the
       defendant failed to timely register his change in address in violation of the Act “on or about
       April 19, 2012 and continuing on through July 3, 2012.” Even assuming the defendant had
       moved to the new address on April 17, 2012, there is no indication that the defendant ever
       returned to the registration office to register his new address at any time after the three-day
       window had passed and before he was arrested on July 3, 2012.
¶ 34        Likewise, we reject the defendant’s argument that, instead of turning him away on April
       18, 2012, the police at the registration office should have registered him as someone who
       lacked a “fixed residence” and required him to report in person on a weekly basis under
       section 6 of the Act. In support, the defendant cites People v. Wlecke, 2014 IL App (1st)
       112467, in which the defendant was convicted of failing to register as a sex offender based
       on his failure to comply with the weekly reporting requirement while lacking a fixed
       residence under section 6 of the Act. In Wlecke, the defendant timely reported to the
       registration office to register as a sex offender within three days of being released from a
       correctional facility, presented a temporary Illinois Department of Corrections (IDOC)
       identification card listing the Veterans’ Administration (VA) Hospital as his address, but was
       turned away by Officer Meaders under the erroneous belief that the temporary IDOC
       identification card could not be used to register the defendant. Id. ¶ 10. Instead, Officer
       Meaders wrote the defendant’s name in a log, but did not document where he was staying or
       inform him that he was required to report weekly until he had satisfactory proof of residence.
       Id. Six days later, the defendant was arrested for failure to register as a sex offender and was
       later convicted of failing to report weekly to the police department while lacking a fixed
       residence under section 6 of the Act. Id. ¶¶ 11, 15. In reversing his conviction, this court
       found that a residential treatment facility like the VA Hospital can be considered a “fixed
       residence” under the Act; that nothing in the Act precluded the defendant from presenting the
       temporary IDOC identification card as sufficient proof of residence; and that even if the
       IDOC card was not valid proof of residence, the defendant should have been registered as an
       offender lacking a “fixed residence” that required weekly reporting so that he would not have
       been in violation of the Act less than a week later–six days–when he was arrested. Id. ¶¶ 26,
       28, 38. We find Wlecke to be distinguishable from the case at bar, where here, the issue was
       not whether the defendant produced a valid form of identification card, but whether the


                                                  -8-
       information on the identification card contained the new address that the defendant was
       attempting to report and register. As noted, the defendant admitted at trial that he did not
       produce an identification card bearing the new address when he appeared at the registration
       office on April 18, 2012. One purpose of the registration requirement is to advise the
       authorities of a convicted sex offender’s whereabouts. That purpose would be frustrated if the
       defendant’s argument is accepted. Thus, because the defendant admittedly had a fixed
       residence 4 within the meaning of the Act but failed to produce an identification card
       evidencing the new fixed residence, we reject the defendant’s red herring argument that the
       registration office should have somehow registered him anyway as lacking a fixed residence
       under the Act.
¶ 35       In sum, the defendant satisfied his 90-day reporting requirement by appearing in person
       at the police station on April 18, 2012, and his conviction under count I is reversed.
       However, his conviction is affirmed under count II with regard to his failure to report his
       change of address because he failed to register his new address within three days of such
       change.
¶ 36       The second issue on appeal is whether the defendant’s prior conviction for aggravated
       criminal sexual assault was improperly used as both an element of the offense and as a basis
       for imposing a mandatory Class X sentence, thus resulting in an improper double
       enhancement.
¶ 37       An improper double enhancement occurs, absent the legislature’s clear expression of its
       intention to enhance the penalty based upon an aspect of the crime, when (1) a single factor is
       used as either both an element of the offense and as a basis for imposing a harsher sentence,
       or (2) the same factor is used twice to elevate the severity of the offense itself. People v.
       Siguenza-Brito, 235 Ill. 2d 213, 232 (2009); People v. Phelps, 211 Ill. 2d 1, 15 (2004). The
       defendant claims he has suffered double enhancement of the first kind, arguing that his prior
       conviction for aggravated criminal sexual assault was an element of the instant offense and
       was also used as one of the two prior felonies to impose Class X sentencing on a Class 2
       offense.
¶ 38       The defendant was charged with violating section 6 of the Act, in that having previously
       been convicted of aggravated criminal sexual assault under case number 94 CR 1711801, he
       changed his address but failed to report such change within the time period specified. 730
       ILCS 150/6 (West 2012). The Act states that “[a]ny person who is convicted for a violation
       of this Act for a second or subsequent time is guilty of a Class 2 felony.” 730 ILCS 150/10(a)
       (West 2012). The defendant was eligible to be sentenced as a Class 2 offender because he
       was previously convicted of failure to register under case number 04 CR 2354101, making
       the instant conviction a subsequent violation of the Act. He was also found to be eligible for
       Class X sentencing pursuant to section 5-4.5-95(b) of the Unified Code of Corrections, which
       requires a defendant convicted of a Class 2 felony to be sentenced as a Class X offender if he
       or she was previously convicted of two separately tried offenses of Class 2 felony or greater.
       See 730 ILCS 5/5-4.5-95(b) (West 2012). The defendant’s qualifying convictions were
       indecent liberties with a child and aggravated criminal sexual assault.


           4
            “Fixed residence” is defined as “any and all places that a sex offender resides for an aggregate
       period of time of 5 or more days in a calendar year” under the Act. 730 ILCS 150/2(I) (West 2012).

                                                     -9-
¶ 39        As stated above, the defendant argues that his conviction for aggravated criminal sexual
       assault was improperly used twice: once as an element of the instant offense and again as one
       of the two prior felonies for Class X sentencing. Based upon the facts of the present case, this
       court’s opinion in People v. Hall, 2014 IL App (1st) 122868, controls.
¶ 40        In Hall, as in the present case, the defendant was charged with failure to report under
       section 6 of the Act. Id. ¶ 2. The record revealed that the defendant had only two prior felony
       convictions–one for driving under the influence of alcohol and another for aggravated
       criminal sexual assault. The Hall court rejected outright the State’s argument that the
       defendant’s prior conviction for aggravated criminal sexual assault was not improperly used
       to enhance the charge and the sentence, where his aggravated sexual assault conviction was
       used as the basis for establishing defendant was subject to the Act’s reporting requirements
       (i.e., as an element of the offense) and as one of the two prior felonies required to sentence
       the defendant as a Class X offender. Id. ¶ 14.
¶ 41        Likewise, the defendant in the present case had only two prior felony convictions–one for
       aggravated criminal sexual assault and a second for indecent liberties with a child. The
       indictment listed defendant’s prior conviction for aggravated criminal sexual assault as the
       basis for establishing his duty to comply with the Act. This conviction was also necessarily
       used as one of his two prior felony convictions to mandate Class X sentencing. Therefore, in
       accordance with Hall, the defendant’s sentence was improper.
¶ 42        Nonetheless, the State argues that Hall was wrongly decided because his conviction for
       aggravated criminal sexual assault was used as a manner of establishing that the defendant
       was subject to the Act’s reporting requirements but is not an element of the offense itself, and
       was therefore not improper double enhancement. However, the Hall court expressly
       concluded that establishing a defendant’s duty to register under the Act is an element of the
       offense of failure to report. Id. As such, the State has failed to provide a compelling basis that
       requires this court to deviate from our decision in Hall. Accordingly, we vacate the sentence
       and remand the cause for resentencing. See id. ¶ 13.
¶ 43        For the foregoing reasons, the judgment of the circuit court of Cook County is reversed
       with regard to the defendant’s conviction for failure to report within 90 days under count I,
       affirmed with regard to the defendant’s conviction under count II for failure to report and
       register his new address within three days of changing his address, and the defendant’s
       sentence is vacated and the cause remanded for resentencing.

¶ 44      Reversed in part; affirmed in part; vacated in part; remanded for resentencing.




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