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                                  Supreme Court                              Date: 2019.02.04
                                                                             11:14:33 -06'00'




                         People v. Bingham, 2018 IL 122008




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:               JEROME BINGHAM, Appellant.



Docket No.           122008



Filed                September 20, 2018
Rehearing denied     November 26, 2018



Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Bridget Jane Hughes, Judge, presiding.



Judgment             Appellate court judgment affirmed in part and vacated in part; appeal
                     dismissed.


Counsel on           James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy
Appeal               Defender, and Deborah Nall, Assistant Appellate Defender, of the
                     Office of the State Appellate Defender, of Chicago, for appellant.

                     Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
                     Solicitor General, and Michael M. Glick and Eric M. Levin, Assistant
                     Attorneys General, of Chicago, of counsel), for the People.
                              Mayer Brown LLP (Michael A. Scodro, of Chicago, Andrew L. Frey,
                              of New York, New York, and Craig W. Canetti, of Washington, D.C.,
                              of counsel), for amicus curiae Collateral Consequences Resource
                              Center.

                              Adele D. Nicholas and Mark G. Weinberg, both of Chicago, for
                              amicus curiae Illinois Voices for Reform.



     Justices                 JUSTICE THOMAS delivered the judgment of the court, with
                              opinion.
                              Chief Justice Karmeier and Justices Kilbride, Garman, Burke, Theis,
                              and Neville concurred in the judgment and opinion.



                                                OPINION

¶1         Following a September 2014 bench trial in the circuit court of Cook County, defendant
       Jerome Bingham was convicted of felony theft (720 ILCS 5/16-1(a)(2)(A), (b)(2) (West
       2012)) and sentenced to three years in prison. Defendant had a prior conviction for attempted
       criminal sexual assault that occurred in 1983, but he was not required to register as a sex
       offender at that time because the conviction occurred prior to the 1986 enactment of the Sex
       Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 2012)). Under section 3(c)(2.1)
       of the Act as amended in 2011 (id. § 3(c)(2.1)), however, defendant’s 2014 felony theft
       conviction triggered a requirement that he register as a sex offender on account of his 1983
       conviction for attempted criminal sexual assault. Sex offender registration is a matter
       controlled by statute and was not a requirement imposed by the trial court in this case, and it is
       thus not reflected in the trial court’s judgment.
¶2         On appeal to the appellate court, defendant argued that the Act’s registration requirement
       was unconstitutional as applied to him on due process grounds and that it violated the
       ex post facto clauses of the United States and Illinois Constitutions. The appellate court
       addressed the merits of defendant’s claims and rejected them, thereby upholding the
       constitutionality of the Act. The appellate court also modified or vacated various fines and fees
       imposed by the trial court.
¶3         Defendant petitioned for leave to appeal to this court, which we allowed. Ill. S. Ct. R. 315
       (eff. Mar. 15, 2016). For the reasons that follow, we vacate the portion of the appellate court’s
       judgment that addressed, on the merits, the constitutionality of the Act’s registration
       requirement, and we dismiss defendant’s appeal before this court.

¶4                                          BACKGROUND
¶5        Defendant was charged with felony theft after a surveillance camera recorded him taking
       several pallets from the unfenced yard of a Kmart at 4201 Harlem Avenue in Norridge, Illinois,


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       at approximately 6:30 p.m. on May 3, 2014. The indictment alleged that defendant committed
       theft
                “in that he knowingly obtained or exerted unauthorized control over property, to wit:
                pallets, of a value less than five hundred dollars, the property of Kmart, intending to
                deprive Kmart, permanently of the use or benefit of said property, and the defendant
                has been previously convicted of the offense [of] retail theft [(720 ILCS 5/16-1(a)(1)
                (West 1992))].”
       Although theft is generally a Class A misdemeanor, the offense in this case was elevated to a
       Class 4 felony because defendant had previously been convicted of another theft offense. See
       720 ILCS 5/16-1(b)(2) (West 2012).
¶6          At trial, the State presented testimony from various witnesses establishing that on May 3,
       2014, defendant took from the Norridge Kmart a total of six pallets, valued at $72, and drove
       away in his truck without paying or receiving permission to take them. The parties stipulated
       that defendant had a previous conviction for retail theft in case No. 00125524901. The State
       entered various exhibits into evidence, and the trial court viewed a video depicting defendant
       taking the pallets from the Kmart receiving area.
¶7          Defendant testified that, about six months before the incident at issue, he had a
       conversation with a person who was driving a forklift in the back of the Kmart at 4201 North
       Harlem Avenue. The forklift driver told defendant that it would be okay for him to take broken
       pallets from behind the Kmart for scrapping purposes.
¶8          The trial court found defendant guilty of theft, and the cause proceeded to sentencing. The
       presentence investigation report showed that defendant had an extensive criminal history,
       which included convictions for the following offenses: attempted criminal sexual assault in
       1983, possession of a controlled substance in 1993 and 1996, violation of an order of
       protection in 1999, retail theft of less than $150 in 1999, possession of a stolen vehicle in 2000,
       two retail thefts in 2000, theft in 2004, and possession of a controlled substance in 2005 and
       2007. The State also presented evidence at sentencing that on May 2, 2014, the day before the
       theft that defendant was found guilty of in this case, defendant also stole pallets from the
       Kmart located at 4201 North Harlem Avenue.
¶9          The trial court sentenced defendant to three years’ imprisonment on his theft
       conviction—which became a Class 4 felony due to his previous conviction for retail
       theft—and assessed $699 in various fines, fees, and costs. The trial court did not impose as part
       of its judgment a requirement that defendant register as a sex offender.
¶ 10        Defendant’s theft conviction, however, did trigger the collateral consequence 1 of his
       having to register as a sex offender under the Act. The presentence investigation report
       indicated that 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

           1
           A collateral consequence is an effect upon a defendant that the circuit court has no authority to
       impose, and it results from an action that may or may not be taken by an agency that the trial court
       does not control. People v. Delvillar, 235 Ill. 2d 507, 520 (2009).

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       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 with the
       appropriate law enforcement agency as a sex offender for his commission of attempted
       criminal sexual assault in 1983.
¶ 11       On appeal to the appellate court, defendant first argued that the registration requirement of
       the Act violated his substantive due process rights as applied because under the particular facts
       of this case, where such a long time had passed since defendant’s sex offense, there was no
       reasonable relationship between the Act’s requirement to register and its purpose of protecting
       the public from sex offenders. 2017 IL App (1st) 143150, ¶ 23. The appellate court rejected
       that argument. It found that the legislature could have reasonably determined that where a
       defendant commits a sex offense in the past for which he was not required to register and has
       shown a recent, general tendency to recidivate by committing a new felony offense since the
       amendment of the Act in 2011, he poses a potential threat of committing a new sex offense in
       the future. Id. ¶ 24 Moreover, the appellate court noted, “[s]uch a threat is magnified in the
       instant case, where defendant has committed no less than 11 crimes (6 felonies and 5
       misdemeanors), in addition to the 2014 felony theft at issue here, since his attempted criminal
       sexual assault in 1983.” Id. The appellate court concluded that the Act’s requirement that
       defendant register as a sex offender for committing the 2014 felony theft after having
       committed the 1983 attempted criminal sexual assault is a reasonable method for
       accomplishing the desired legislative objective of protecting the public from sex offenders, and
       therefore it found the Act as applied to defendant satisfies the rational basis test and is
       constitutional. Id.
¶ 12       Defendant next argued that the registration requirement of the Act is a new and ongoing
       punishment for the attempted criminal sexual assault offense he committed in 1983 and
       therefore violates the ex post facto clauses of the United States and Illinois Constitutions. Id.
       ¶ 25. The appellate court rejected this argument as well. Citing People ex rel. Birkett v.
       Konetski, 233 Ill. 2d 185, 207 (2009), In re J.W., 204 Ill. 2d 50, 75 (2003), People v. Malchow,
       193 Ill. 2d 413, 424 (2000), People v. Adams, 144 Ill. 2d 381, 386-90 (1991), and People v.
       Fredericks, 2014 IL App (1st) 122122, ¶¶ 58-61, it concluded that the requirement of sex
       offender registration does not amount to punishment and there was therefore no violation of
       the ex post facto clauses. 2017 IL App (1st) 143150, ¶¶ 27, 30.

¶ 13                                           ANALYSIS
¶ 14       Before this court, 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.
¶ 15       In response, the State first raises a threshold jurisdictional argument. It contends that a
       reviewing court has no power on direct appeal of a criminal conviction to order that a
       defendant be relieved of his obligation to register as a sex offender when that obligation was
       neither imposed by the trial court nor did it in any way relate to the reasons for his conviction
       and sentence in that court. We agree with the State.
¶ 16       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.


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       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.”
¶ 17       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.”
¶ 18       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.” 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.
¶ 19       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. 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.” See Padilla v. Kentucky, 559 U.S. 356, 376 (2010)
       (Alito, J., concurring in the judgment, joined by Roberts, C.J.). 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. See People v.
       Molnar, 222 Ill. 2d 495, 500 (2006) (the Illinois State Police is “the agency responsible for
       implementing [sex offender registration under the Act]”).
¶ 20       The only Illinois case that defendant has managed to cite with the same procedural posture
       as the present case—i.e., involving a defendant seeking to challenge a collateral consequence
       of a conviction on direct appeal from that conviction—is People v. Avila-Briones, 2015 IL App
       (1st) 132221. There, however, the State did not make the same argument about the limit on the
       powers of the reviewing court to address the collateral consequences of a conviction. Instead,

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       the State in that case merely challenged the defendant’s ability to raise the sex offender
       registration requirement on the ground that the defendant lacked standing. The appellate
       court’s antennae were raised relative to the unusual nature of defendant bringing such a claim
       on direct appeal from the criminal conviction, but it ultimately concluded that the case did not
       pose a standing problem:
                    “It is *** unusual for a defendant to raise the challenges to these nonsentencing
                laws on direct appeal from his criminal conviction, when a litigant typically does so in
                a civil action. The trial court, after all, did not impose these restrictions as part of its
                sentence. Instead, these laws automatically applied to defendant, no matter the trial
                court’s sentence. But that does not alter the fact that defendant checks all the boxes on
                the requirements for standing.” Id. ¶ 32.
¶ 21       We do not find Avila-Briones to be useful authority for resolving the precise issue before us
       here, which involves the power of a reviewing court to address the issue rather than simply the
       standing of the defendant. Also, Avila-Briones itself noted the difficulty it faced in reviewing
       such a case where the record lacked detailed factual findings because defendant “did not file a
       civil suit and seek an evidentiary hearing before the trial court” with respect to his claims. See
       id. ¶ 86. The two proper ways that the kinds of constitutional issues involved in this case
       typically make their way to a reviewing court are (1) through a direct appeal from a case
       finding a defendant guilty of violating the regulation he attempts to challenge as
       unconstitutional, such as the sex offender registration law (see, e.g., People v. Minnis, 2016 IL
       119563, ¶¶ 13-17),2 or (2) by filing a civil suit seeking a declaration of unconstitutionality and
       relief from the classification as well as the burdens of sex offender registration (see, e.g.,
       Johnson v. Madigan, 880 F.3d 371, 373-77 (7th Cir. 2018) (where the court in a civil suit
       rejected defendant’s ex post facto challenge to the same statute at issue here on basically the
       same facts, finding that the Act did not apply retroactively for ex post facto purposes as applied
       to defendant)).
¶ 22       Moreover, the improper tack that defendant chose in this case of raising his as-applied due
       process challenge to sex offender registration for the first time in the reviewing court in a
       collateral proceeding without the benefit of a factual record to support the claim makes it
       difficult if not impossible to adjudicate the claim on appeal. This court has repeatedly held that
       an as-applied challenge is not properly brought when there has been no evidentiary hearing and
       no findings of fact. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 31;
       People v. Rizzo, 2016 IL 118599, ¶ 26; People v. Mosley, 2015 IL 115872, ¶ 47; In re
       Parentage of John M., 212 Ill. 2d 253, 268 (2004). “ ‘ “Without an evidentiary record, any
       finding that a statute is unconstitutional ‘as applied’ is premature.” ’ ” Rizzo, 2016 IL 118599,
       ¶ 26 (quoting Mosley, 2015 IL 115872, ¶ 47, quoting John M., 212 Ill. 2d at 268). All
       as-applied challenges are, by definition, dependent on application of the law to the specific
       facts and circumstances alleged by the challenger; therefore, it is crucial that the record be
       sufficiently developed with respect to those facts and circumstances for purposes of appellate
       review. 2010 Harley-Davidson, 2018 IL 121636, ¶ 31.

           2
           In Minnis, defendant was charged with failing to register as a sex offender. 2016 IL 119563, ¶ 5.
       We noted that a court will not consider a constitutional challenge to a criminal statutory provision
       under which a defendant has not been charged unless his challenge is brought under the first
       amendment’s overbreadth doctrine. Id. ¶¶ 13-14.

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¶ 23       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.

¶ 24                                         CONCLUSION
¶ 25       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.

¶ 26      Appellate court judgment affirmed in part and vacated in part; appeal dismissed.




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