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                                                                           Date: 2018.02.07
                               Appellate Court                             13:53:06 -06'00'




                   People v. Scott, 2017 IL App (4th) 150529



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



District & No.    Fourth District
                  Docket No. 4-15-0529


Filed             November 30, 2017



Decision Under    Appeal from the Circuit Court of Morgan County, No. 14-CF-100; the
Review            Hon. Jeffrey E. Tobin, Judge, presiding.



Judgment          Affirmed in part as modified and vacated in part.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Sonthonax B.
Appeal            SaintGermain, of State Appellate Defender’s Office, of Springfield,
                  for appellant.

                  Gray Noll, State’s Attorney, of Jacksonville (Patrick Delfino, David J.
                  Robinson, and Linda McClain, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE TURNER delivered the judgment of the court,
                  with opinion.
                  Justices Steigmann and Appleton concurred in the judgment and
                  opinion.
                                             OPINION

¶1       In August 2014, the State charged defendant, Zachary Scott, by information with one
     count of failure to register as a sex offender (730 ILCS 150/3(a), 10(a) (West 2014)). After a
     February 2015 trial, a jury found defendant guilty of the charge. Defendant filed a posttrial
     motion and an amended posttrial motion. At the March 2015 sentencing hearing, the Morgan
     County circuit court sentenced defendant to eight years’ imprisonment. In June 2015, the
     court denied defendant’s amended posttrial motion.
¶2       Defendant appeals, contending (1) the State failed to prove him guilty beyond a
     reasonable doubt, (2) plain error occurred because the jury instructions failed to state all of
     the elements of the charge and the circuit court failed to respond to the jury’s legal question,
     (3) he received ineffective assistance of trial counsel, (4) the circuit clerk improperly
     imposed fines, and (5) he did not receive a per diem credit. We affirm in part as modified and
     vacate in part.

¶3                                       I. BACKGROUND
¶4       The State’s August 25, 2014, information asserted defendant committed unlawful failure
     to register as a sex offender in that he, a sex offender, knowingly failed to register, in
     accordance with the provisions of the Sex Offender Registration Act (Act) (730 ILCS 150/1
     et seq. (West 2014)), with the chief of police of Jacksonville, Illinois, on Monday, August 18,
     2014, as required. The information also noted defendant had a prior conviction for violating
     the Act (People v. Scott, No. 12-CF-100 (Cir. Ct. Morgan Co.)). Thus, defendant was alleged
     to have committed a Class 2 felony. See 730 ILCS 150/10(a) (West 2014) (providing “[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”).
¶5       In February 2015, the circuit court held defendant’s jury trial. The State presented the
     testimony of Michele Quinlan, an investigative aid for the Jacksonville police department,
     and Kyle Chumley, a Jacksonville detective. In addition to their testimony, the State
     presented defendant’s August 11, 2014, registration form (State’s exhibit No. 1). Defendant’s
     only evidence consisted of 25 of his sex offender registration forms dated from January 9,
     2012, to August 11, 2014. Both parties stipulated defendant was a sex offender.
¶6       Quinlan testified that, on August 11, 2014, she assisted defendant in completing his
     registration form. When defendant signed the form, it listed his next registration date as
     August 18, 2014. Quinlan was working on August 18, 2014, and defendant did not report for
     registration. Defendant did appear for registration on August 21, 2014, and Quinlan notified
     Detective Chumley of his appearance.
¶7       Detective Chumley interviewed defendant on August 21, 2014. Defendant was
     cooperative and answered his questions. Defendant told the detective he thought he had a
     grace period. Detective Chumley arrested defendant after the interview.
¶8       The August 11, 2014, registration form listed defendant’s resident address as
     “Homeless,” and as to the type of registration, the box was checked for “Homeless Weekly.”
     Defendant did provide a mailing address but stated “not living there.” The form also stated
     the following: “I have read and/or had read to me, the above requirements. It has been



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       explained to me and I understand my duty to register on or before 8/18/14.” Defendant
       signed the form.
¶9          One of the jury instructions given by the circuit court was the State’s instruction No. 12,
       which was based on Illinois Pattern Jury Instructions, Criminal, No. 9.43F (4th ed. Supp.
       2011). That instruction read as follows: “A person commits the offense of failure to register
       as a sex offender when he knowingly fails to register.” The court also gave the State’s
       instruction No. 13, which was based on Illinois Pattern Jury Instructions, Criminal, No.
       9.43H (4th ed. Supp. 2011), which stated, in pertinent part, the following:
                   “To sustain the charge of unlawful failure to register as a sex offender, the State
                must prove the following propositions:
                   First Proposition: That the defendant is a sex offender; and
                   Second Proposition: That the defendant knowingly failed to register ***.”
       Defendant did not object to the two aforementioned jury instructions.
¶ 10        During deliberations, the jury first asked the following question: “Are we determining if
       he ‘knowingly failed to register?’ Or if he ‘knowingly failed to register late?’ ” Before the
       jury received the answer to the first question, the jury asked the following question: “A
       person commits the offense of failure to register as a sex offender when he knowingly fails to
       register on the date on the form? Is that what we are deciding?” (Emphases in original.) The
       court responded to both questions with the following answer: “The Court directs the jurors to
       all of the previous written instructions that have been provided to the jury.” The jury found
       defendant guilty of the charge.
¶ 11        In March 2014, defendant filed a timely posttrial motion and later amended his posttrial
       motion. On March 30, 2014, the circuit court sentenced defendant to eight years’
       imprisonment (defendant was subject to Class X sentencing based on his criminal history
       (see 730 ILCS 5/5-4.5-95(b) (West 2014)). Additionally, the court ordered defendant to pay
       (1) the $100 Violent Crime Victims Assistance Act fine, (2) the $15 state police operations
       assessment, (3) the $5 drug court program assessment, and (4) the $30 child advocacy
       assessment. In a June 10, 2015, written order, the court denied defendant’s amended posttrial
       motion.
¶ 12        On June 16, 2015, defendant filed a timely notice of appeal in sufficient compliance with
       Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014). Accordingly, this court has jurisdiction
       under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).

¶ 13                                         II. ANALYSIS
¶ 14                                     A. Reasonable Doubt
¶ 15       Defendant first asserts the State failed to prove him guilty beyond a reasonable doubt
       because it failed to prove he lacked a fixed residence. The State disagrees. After reviewing
       the statutory scheme and defendant’s argument, we find a threshold issue exists of whether
       the lack of a fixed residence is an element of the crime in this case. That issue presents a
       question of law, which we review de novo. See People v. Pettis, 2017 IL App (4th) 151006,
       ¶ 17.




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¶ 16                                   1. Relevant Statutory Scheme
¶ 17       Section 10(a) of the Act (730 ILCS 150/10(a) (West 2014)) states, “[a]ny person who is
       required to register under this Article who violates any of the provisions of this Article *** is
       guilty of a Class 3 felony.” As our supreme court recognized, the statutory scheme
       established by the Act “leaves something to be desired, in terms of clarity and consistency.”
       People v. Pearse, 2017 IL 121072, ¶ 39. Thus, we will carefully examine the statutory
       provisions related to when a sex offender must register and those addressing where a sex
       offender lives.
¶ 18       Section 3(a) of the Act (730 ILCS 150/3(a) (West 2014)) contains numerous
       requirements and begins by requiring sex offenders to register in person and provide accurate
       information as required by the Department of State Police, including “current address.” The
       sex offender must “provide positive identification and documentation that substantiates proof
       of residence at the registering address.” 730 ILCS 150/3(c)(5) (West 2014). Registration
       must take place with the designated official in the municipality or county “in which he or she
       resides or is temporarily domiciled for a period of time for 3 or more days.” 730 ILCS
       150/3(a)(1), (a)(2) (West 2014). Section 3(a) defines “the place of residence or temporary
       domicile” as “any and all places where the sex offender resides for an aggregate period of
       time of 3 or more days during any calendar year.” 730 ILCS 150/3(a) (West 2014).
¶ 19       When a sex offender “lacks a fixed residence,” section 3(a) of the Act (730 ILCS
       150/3(a) (West 2014)) requires the person to “report weekly, in person, with the sheriff’s
       office of the county in which he or she is located in an unincorporated area, or with the chief
       of police in the municipality in which he or she is located.” In such case, “[t]he agency of
       jurisdiction will document each weekly registration to include all the locations where the
       person has stayed during the past 7 days.” 730 ILCS 150/3(a) (West 2014). The Act defines a
       “fixed residence” 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.” 730 ILCS 150/2(I) (West 2014).
¶ 20       When circumstances change, section 3(a) of the Act (730 ILCS 150/3(a) (West 2014))
       requires the sex offender “who lacks a fixed address or temporary domicile [to] notify, in
       person, the agency of jurisdiction of his or her last known address within 3 days after ceasing
       to have a fixed residence.” A sex offender must also give notification when he or she is
       “temporarily absent from his or her current address of registration for 3 or more days.” 730
       ILCS 150/3(a) (West 2014). Additionally, the Act requires a sex offender to register in
       person “within 3 days of *** establishing a residence, place of employment, or temporary
       domicile in any county.” 730 ILCS 150/3(b) (West 2014).

¶ 21                                              2. Merits
¶ 22       In this case, the State asserted defendant violated the Act because he lacked a fixed
       residence and failed to report on August 18, 2014, which was a week after his last report. The
       Act registration form defendant signed on August 11, 2014 (State’s exhibit No. 1), listed his
       “resident address” as “Homeless” and the “Homeless Weekly” box was checked. Defendant
       contends his reporting his resident address as “homeless” was insufficient to establish beyond
       a reasonable doubt he “lack[ed] a fixed residence.”
¶ 23       Citing the First District’s decision in People v. Wlecke, 2014 IL App (1st) 112467, ¶ 21, 6
       N.E.3d 745, defendant first asserts the lack of a fixed residence is an element of the crime.
       However, the Wlecke case had a very different factual situation than the one before us.

                                                   -4-
       Wlecke involved a defendant who had tried to register three days after his release from prison
       but was turned away because he did not have identification issued by the Secretary of State.
       The identification card he did have listed the address for the Veterans’ Administration
       Hospital (VA Hospital). Wlecke, 2014 IL App (1st) 112467, ¶ 10, 6 N.E.3d 745. The officer
       who turned the defendant away never told him to report weekly until he had satisfactory
       proof of residence. Wlecke, 2014 IL App (1st) 112467, ¶ 10, 6 N.E.3d 745. Six days after he
       tried to register, the defendant was arrested for failure to register as a sex offender. Wlecke,
       2014 IL App (1st) 112467, ¶ 11, 6 N.E.3d 745. After his arrest, he told the police he was
       staying with friends and gave them an address of the home. Wlecke, 2014 IL App (1st)
       112467, ¶ 12, 6 N.E.3d 745. The State charged, in the alternative, the defendant failed to
       register in person within three days of establishing a residence or report weekly while lacking
       a fixed residence. Wlecke, 2014 IL App (1st) 112467, ¶ 7, 6 N.E.3d 745. The jury found
       defendant not guilty of failing to register within three days of establishing a residence or
       temporary domicile but guilty of failing to report weekly.
¶ 24       The Wlecke court reversed defendant’s conviction for failure to report weekly. It found
       the State had to prove beyond a reasonable doubt the defendant lacked a fixed residence, and
       the State’s evidence was insufficient to prove that element. Wlecke, 2014 IL App (1st)
       112467, ¶¶ 21, 34, 6 N.E.3d 745. In finding the evidence insufficient, the reviewing court
       noted the record lacked any evidence of the defendant’s presence or absence at either of the
       two addresses he gave the police for an aggregate period of five days during the time period
       at issue. Wlecke, 2014 IL App (1st) 112467, ¶ 21, 6 N.E.3d 745. The reviewing court also
       found the VA Hospital could constitute a “fixed residence” under the Act. Wlecke, 2014 IL
       App (1st) 112467, ¶ 26, 6 N.E.3d 745. Last, the court noted the defendant’s admission he
       was staying with friends was not an admission he lacked a fixed residence as defined in the
       Act. Wlecke, 2014 IL App (1st) 112467, ¶ 31, 6 N.E.3d 745.
¶ 25       Unlike the defendant in Wlecke, who never registered as a sex offender, defendant had
       registered as a sex offender. Additionally, this case does not involve a change in living
       circumstances that could warrant a new registration. See Pearse, 2017 IL 121072 (addressing
       whether a defendant had to register when he returned to his fixed residence after having a
       temporary domicile at a hospital). Here, defendant did not register a fixed residence and thus
       acquiesced to the weekly reporting requirement, which is the most onerous registration
       requirement (Wlecke, 2014 IL App (1st) 112467, ¶ 38, 6 N.E.3d 745). Defendant signed the
       form that stated he needed to report back in one week, which was August 18, 2014. Thus,
       unlike Wlecke, no issue exists as to whether the weekly reporting provision of the Act applied
       to defendant, and “the lack of a fixed residence” is not an element of the crime.
¶ 26       Under the facts of this case, the State did not have to prove defendant lacked a fixed
       residence. Since the lack of a fixed residence was not a element of the crime in this case, we
       do not address defendant’s insufficiency of the evidence argument, including whether the
       term “homeless” constitutes lacking a fixed residence under the Act.

¶ 27                                           B. Plain Error
¶ 28        Defendant next asserts the circuit court erred by (1) giving two jury instructions (State’s
       instruction Nos. 12 and 13) that did not include all of the elements of the offense and (2)
       failing to respond properly to the jurors’ questions. Defendant acknowledges he did not raise
       the issues in the circuit court and requests we review them under the plain error doctrine (Ill.

                                                  -5-
       S. Ct. R. 615(a) (eff. Jan. 1, 1967)). The State asserts defendant has forfeited both arguments
       under the doctrine of invited error. See People v. Heller, 2017 IL App (4th) 140658, ¶ 67, 71
       N.E.3d 1113 (where the defendant affirmatively acquiesced to the limiting instruction and
       thus could not claim on appeal the circuit court erred by giving that instruction). In his reply
       brief, defendant concedes he cannot raise the claim of error regarding the circuit court’s
       answer to the jury’s questions but contends trial counsel did not acquiesce to the challenged
       jury instructions.
¶ 29       We need not determine if trial counsel acquiesced to the jury instructions at issue.
       Defendant bases his challenge to the two jury instructions on his claim the lack of a fixed
       residence is an element of the crime that the State had to prove beyond a reasonable doubt.
       Thus, he argues the two instructions should have included that the State had to prove
       defendant lacked a fixed residence and the definition of a fixed residence. However, the lack
       of a fixed residence establishes the applicability of the weekly reporting requirement of
       section 3(a) of the Act (730 ILCS 150/3(a) (West 2014)). In this case, the applicability of the
       weekly reporting provision was not at issue and not an element of the crime because
       defendant acquiesced to the weekly reporting requirement when he signed his August 11,
       2014, registration form. Thus, on the facts of this case, we do not find the circuit court erred
       by giving the two jury instructions, and thus defendant cannot establish plain error. See
       People v. Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1059 (2010) (indicating the court
       does not proceed to consider the two prongs of the plain error analysis if no error is found).

¶ 30                               C. Ineffective Assistance of Counsel
¶ 31        Defendant also contends he received ineffective assistance of trial counsel because
       counsel failed to ensure the jury was properly instructed on the law applicable to the State’s
       allegations. The State suggests the record is insufficient to address defendant’s argument on
       direct appeal, and if it is adequate, defendant has not established ineffective assistance of
       counsel. This court analyzes ineffective assistance of counsel claims under the standard set
       forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans, 186 Ill. 2d 83, 93,
       708 N.E.2d 1158, 1163 (1999).
¶ 32        To obtain reversal under Strickland, a defendant must prove (1) his counsel’s
       performance failed to meet an objective standard of competence and (2) counsel’s deficient
       performance resulted in prejudice to the defendant. Evans, 186 Ill. 2d at 93, 708 N.E.2d at
       1163. To satisfy the deficiency prong of Strickland, the defendant must demonstrate counsel
       made errors so serious and counsel’s performance was so deficient that counsel was not
       functioning as “counsel” guaranteed by the sixth amendment (U.S. Const., amend. VI).
       Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must overcome the
       strong presumption the challenged action or inaction could have been the product of sound
       trial strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice prong, the
       defendant must prove a reasonable probability exists that, but for counsel’s unprofessional
       errors, the proceeding’s result would have been different. Evans, 186 Ill. 2d at 93, 708
       N.E.2d at 1163-64.
¶ 33        In this case, the record is adequate to address defendant’s ineffective assistance of
       counsel claim. Like his plain error argument, defendant bases his ineffective assistance of
       counsel claim on his contention the lack of a fixed residence is an element of the crime and
       must be proved beyond a reasonable doubt by the State. However, we have already found the

                                                   -6-
       lack of a fixed residence was not an element of the crime in this case. Accordingly, we find
       defendant has not established ineffective assistance of counsel.

¶ 34                                               D. Fines
¶ 35       Additionally, defendant asserts the circuit clerk improperly imposed some of his fines.
       Specifically, he challenges the $50 court finance assessment and the $10 arrestee’s medical
       costs assessment.
¶ 36       “Although circuit clerks can have statutory authority to impose a fee, they lack authority
       to impose a fine, because the imposition of a fine is exclusively a judicial act.” (Emphases
       omitted.) People v. Smith, 2014 IL App (4th) 121118, ¶ 18, 18 N.E.3d 912. Thus, “any fines
       imposed by the circuit clerk are void from their inception.” People v. Larue, 2014 IL App
       (4th) 120595, ¶ 56, 10 N.E.3d 959. A void judgment can be challenged “ ‘at any time or in
       any court, either directly or collaterally.’ ” Sarkissian v. Chicago Board of Education, 201 Ill.
       2d 95, 103, 776 N.E.2d 195, 201 (2002) (quoting Barnard v. Michael, 392 Ill. 130, 135, 63
       N.E.2d 858, 862 (1945)).
¶ 37       We agree with defendant the following assessments are fines: (1) the $50 court finance
       assessment (Smith, 2014 IL App (4th) 121118, ¶ 54, 18 N.E.3d 912) and (2) the $10
       arrestee’s medical costs assessment (Larue, 2014 IL App (4th) 120595, ¶ 57, 10 N.E.3d 959).
       The record contains no evidence the circuit court imposed the aforementioned fines. Since
       the fines were not imposed by the circuit court, they are void and must be vacated.

¶ 38                                       E. Per Diem Credit
¶ 39       Last, defendant asserts he should also be awarded the $5 per diem credit under section
       110-14(a) of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS
       5/110-14(a) (West 2016)) against the $5 drug court assessment, which is listed on the clerk
       printout as $4.75 for “Drug Court” and $0.25 for “Clerk Op Deduction.” Defendant did not
       raise this issue in the circuit court, but the normal rules of forfeiture do not apply to a
       defendant’s request for the credit. People v. Woodard, 175 Ill. 2d 435, 457, 677 N.E.2d 935,
       945-46 (1997).
¶ 40       Section 110-14(a) of the Procedure Code provides the following: “Any person
       incarcerated on a bailable offense who does not supply bail and against whom a fine is levied
       on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated
       upon application of the defendant. However, in no case shall the amount so allowed or
       credited exceed the amount of the fine.” 725 ILCS 5/110-14(a) (West 2016). The State
       concedes defendant is entitled to the credit. We agree defendant is entitled to $5 credit
       against his $5 drug court assessment. See People v. Sulton, 395 Ill. App. 3d 186, 193, 916
       N.E.2d 642, 648 (2009).

¶ 41                                       III. CONCLUSION
¶ 42       For the reasons stated, we (1) vacate the $50 court finance assessment and the $10
       arrestee’s medical costs assessment, (2) modify the sentencing judgment to include a $5
       credit against the $5 drug court assessment, and (3) affirm the Morgan County circuit court’s
       judgment in all other respects. As part of our judgment, we award the State its $75 statutory



                                                   -7-
       assessment against defendant as costs of this appeal.

¶ 43      Affirmed in part as modified and vacated in part.




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