                                              Second Division
                                              January 31, 2006




No. 1-04-1292

THE PEOPLE OF THE STATE                  )    Appeal from the
OF ILLINOIS,                             )    Circuit Court of
                                         )    Cook County
          Plaintiff-Appellee             )
                                         )
     v.                                  )    No. 99 CR 25364-02
                                         )
                                                   CHARLES
                                              JOHNSON,
                                                        )
                                                   Honorable
                                        )     Dennis A. Dernbach
          Defendant-Appellant.          )     Judge Presiding.

     JUSTICE HALL delivered the opinion of the court:

     Defendant Charles Johnson was charged with one count of

armed robbery, one count of armed violence, one count of

possession of a stolen motor vehicle, one count of aggravated

battery, nine counts of aggravated kidnaping, and three counts of

unlawful use of a weapon in connection with the kidnaping of

Elmora Kimbrough and her 20-month-old granddaughter, Paige

Kimbrough.   The record shows that on October 23, 1999, defendant,

along with four codefendants, carried out a plan to kidnap Elmora

Kimbrough in order to demand a ransom from her son, Frank

Kimbrough.   Two of the defendants were apprehended by the FBI and

Chicago police when they attempted to collect the ransom.    The

two apprehended defendants then led police to a van where the

remaining defendants were arrested.

     Defendant subsequently entered open pleas of guilty to one

count of aggravated kidnaping of Paige Kimbrough and armed
1-04-1292

robbery of Elmora Kimbrough.    The State dismissed the remaining

counts.     Defendant was sentenced to concurrent terms of 17 years'

imprisonment for each offense.

     On direct appeal, we determined that defendant had not been

properly admonished in accordance with Supreme Court Rule 605(b)

(188 Ill. 2d R. 605(b)), and therefore remanded the case for

proper admonishments. People v. Johnson, No. 1-02-2531 (2003)

(unpublished order under Supreme Court Rule 23 (166 Ill. 2d R.

23)).   Upon remand, defendant informed the trial court that he

could not afford private counsel.       The trial court appointed an

assistant public defender to represent defendant and then

admonished him in accordance with Rule 605(b).

     Following the trial court's Rule 605(b) admonishments,

defense counsel indicated that rather than withdraw his guilty

plea, defendant wanted to file his pro se motion for

reconsideration of sentence and to correct a void sentence.      In

the pro se motion, defendant asserted that his sentence was

excessive and that he was improperly sentenced for an offense for

which he was not indicted.

     The trial court denied defendant's pro se motion and again

sentenced him to two concurrent 17-year terms of imprisonment.

This appeal followed.

     Defendant contends on appeal that: (1) this case should be

remanded to the trial court for a rehearing on his motion to

reconsider sentence on the ground that defense counsel failed to


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file a Rule 604(d) (188 Ill. 2d R. 604(d)) certificate; and (2)

section 2(B)(1.5) of the Sex Offender Registration Act

(Registration Act) (730 ILCS 150/2(B)(1.5) (West 2000)), under

which he was labeled a sex offender by reason of his pleading

guilty to aggravated kidnaping, is unconstitutional as applied to

him where this offense was not sexually motivated and had no

sexual purpose.   For the reasons that follow, we reverse and

remand.

                              ANALYSIS

                           I. Rule 604(d)

     Defendant first contends that this case must be remanded to

the trial court for a rehearing on his motion to reconsider

sentence because defense counsel failed to file a Rule 604(d)

certificate.   We agree.

     The question of whether defense counsel complied with Rule

604(d) is subject to de novo review. People v. Lloyd, 338 Ill.

App. 3d 379, 384, 788 N.E.2d 1169 (2003).   Under Rule 604(d), an

attorney representing a defendant at the postplea motion stage is

required to file:

     "[A] certificate stating that the attorney has consulted

     with the defendant either by mail or in person to ascertain

     defendant's contentions of error in the sentence or the

     entry of the plea of guilty, has examined the trial court

     file and report of proceedings of the plea of guilty, and

     has made any amendments to the motion necessary for adequate


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     presentation of any defects in those proceedings." 188 Ill.

     2d R. 604(d).

     "The certificate requirement allows 'the trial court to

insure that counsel has reviewed the defendant's claim and

considered all relevant bases for the motion to withdraw the

guilty plea or to reconsider the sentence.'" People v. Hampton,

335 Ill. App. 3d 1041, 1043, 782 N.E.2d 933 (2003), quoting

People v. Shirley, 181 Ill. 2d 359, 361, 692 N.E.2d 1189 (1998).

In this case, defense counsel did not file a Rule 604(d)

certificate.

     The State responds that defense counsel was not required to

file a Rule 604(d) certificate because the defendant was acting

pro se when he filed his motion to reconsider sentence.    The

State contends that although counsel was appointed to represent

defendant, defendant acted pro se by filing his own motion to

reconsider sentence and therefore appointed counsel was not

required to file a Rule 604(d) certificate.   We must reject the

State's contentions.

     It is true that a defendant does not have a right to

"hybrid" representation, where he alternates between proceeding

pro se and being represented by counsel. See, e.g., People v.

Pondexter, 214 Ill. App. 3d 79, 88, 573 N.E.2d 339 (1991).

However, the record in this case does not indicate that defendant

elected to proceed pro se.

     The record shows that when the case was remanded for Rule


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1-04-1292

605(b) admonishments, the trial court appointed counsel to

represent defendant after he indicated he could not afford

private counsel.   Following the trial court's Rule 605(b)

admonishments, defense counsel informed the court that rather

than withdraw his guilty plea, defendant wanted to file a pro se

motion for reconsideration of sentence and to correct a void

sentence.   Such actions alone do not suggest that defendant

elected to proceed pro se. See, e.g., People v. Scott, 143 Ill.

App. 3d 540, 542, 493 N.E.2d 27 (1986) (once the trial court

granted defendant's request for assistance of counsel, he was no

longer acting pro se); People v. Velasco, 197 Ill. App. 3d 589,

591, 554 N.E.2d 1094 (1990) (holding that Rule 604(d) gave

defendant the right to consult with appointed counsel in the

presentment of a pro se motion).

     Alternatively, the State maintains that even if we determine

that defendant was not acting pro se when he presented his motion

to reconsider sentence, remandment is unnecessary and impractical

because defendant did not suffer any prejudice as a result of his

counsel's failure to file a Rule 604(d) certificate.   The State

contends that defendant was not prejudiced in this regard because

he had already challenged his sentence following remand for Rule

605(b) admonishments and he did not raise a sentencing issue on

appeal.   Again, we must reject the State's contentions.

     "Our supreme court has held the certificate requirement of

Rule 604(d) must be strictly complied with." Hampton, 335 Ill.


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1-04-1292

App. 3d at 1043, citing Shirley, 181 Ill. 2d at 362; People v.

Janes, 158 Ill. 2d 27, 35, 630 N.E.2d 790 (1994).     In People v.

Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218 (1988), our supreme

court stated:

     "[T]here is a general perception in our criminal justice

     system *** that a complete relaxation of Rule 604(d) is

     acceptable in this State.   We hold today that it is not.

            At the risk of stating the obvious, it should be

     pointed out that the rules adopted by this court concerning

     criminal defendants and guilty pleas are in fact rules of

     procedure and not suggestions.    It is incumbent upon counsel

     and courts alike to follow them."

     The remedy for failure to strictly comply with the

provisions of Rule 604(d) is a remand to the circuit court for

the filing of a new motion and a new hearing on the motion.

Janes, 158 Ill. 2d at 32; People v. Heinz, 259 Ill. App. 3d 709,

712, 632 N.E.2d 338 (1994).

                  II. Sex Offender Registration Act

     Defendant next challenges the constitutionality of section

2(B)(1.5) of the Registration Act, under which he was labeled a

sex offender by reason of his pleading guilty to aggravated

kidnaping.    Under section 2(B)(1.5) of the Registration Act, a

"sex offense" is defined to include certain enumerated offenses

in which the victim is a minor and the offender is not the




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1-04-1292

victim's parent. 1   In this case, because defendant pled guilty to

aggravated kidnaping of a minor of whom he was not the parent, he

was automatically classified a sex offender pursuant to the

statute.

     Defendant does not contend that section 2(B)(1.5) of the

Registration Act is facially unconstitutional.     Rather, he

asserts that it is unconstitutional as applied to him because his

offense of aggravated kidnaping was not sexually motivated.

Specifically, defendant contends that his automatic

classification as a sex offender under section 2(B)(1.5) based

     1
         The Registration Act provides in relevant part:

            "(B) As used in this Section, 'sex offense' means:

                      * * *

                 (1.5) A felony violation of any of the following

            Sections of the Criminal Code of 1961, when the victim

            is a person under 18 years of age, the defendant is not

            a parent of the victim, and the offense was committed

            on or after January 1, 1996:

                      10-1 (kidnapping),

                      10-2 (aggravated kidnapping),

                      10-3 (unlawful restraint),

                      10-3.1 (aggravated unlawful restraint).

                 An attempt to commit any of these offenses." 730

            ILCS 150/2(B)(1.5) (West 2000).



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1-04-1292

upon his pleading guilty to aggravated kidnaping is unreasonable

and arbitrary in violation of his equal protection and

substantive due process rights under the state and federal

constitutions where the offense was not sexually motivated.

     The State first contends that we should not address this

issue because defendant raises it for the first time in this

appeal.     We reject this argument since a defendant can raise a

constitutional challenge to a criminal statute at any time. See

People v. Ramos, 353 Ill. App. 3d 133, 142, 817 N.E.2d 1110

(2004).

     The State next maintains that we should not address the

issue because it is beyond the limited scope of remand in the

instant case, which was remanded to the trial court for the

exclusive purpose of giving defendant proper Rule 605(b)

admonishments and therefore defendant should challenge the

statute under the Post-Conviction Hearing Act (725 ILCS 5/122-1

et seq. (West 2002)).    We reject this contention since our court

has determined that a defendant who fails to receive proper Rule

605(b) admonishments is not required to pursue remedies under the

Post-Conviction Hearing Act. See People v. Egge, 194 Ill. App. 3d

712, 717-18, 551 N.E.2d 372 (1990).

     Turning to the merits, we first note that statutes are

presumed constitutional. People v. Fisher, 184 Ill. 2d 441, 448,

705 N.E.2d 67 (1998).    Consequently, a party challenging the

validity of a statute has the burden of clearly showing that it


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1-04-1292

is unconstitutional. Fisher, 184 Ill. 2d at 448.    The question of

whether a statute is constitutional is a question of law subject

to de novo review. Fisher, 184 Ill. 2d at 448.

     In this case, defendant challenges the constitutionality of

section 2(B)(1.5) on both substantive due process and equal

protection grounds.    Defendant's challenge to the statute,

however, is more a due process claim than an equal protection

claim.

     Defendant does not contend that the classification of some

individuals as sexual offenders is unconstitutional.    Rather, he

maintains that he does not belong within the classification.
                                                         2
Therefore, defendant actually raises a due process claim. See,


     2
         "The equal protection guarantee has nothing to do with the




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determination of whether a specific individual is properly placed

within a classification.   Equal protection tests whether the

classification is properly drawn.     It is the guarantee of




                               -10-
1-04-1292

e.g., State v. Robinson, 873 So. 2d 1205 (2004).

     The standards used to determine the constitutionality of a

procedural due process that determines what process is necessary

to find that an individual falls within or outside of a specific

classification.   Equal protection deals with legislative line

drawing; procedural due process deals with the adjudication of

individual claims." R. Rotunda & J. Nowak, Treatise on

Constitutional Law: Substance and Procedure ' 18.2, at 208-09 (3d

ed. 1999).




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statute under equal protection and due process grounds are

identical. People v. Williams, 358 Ill. App. 3d 363, 366, 832

N.E.2d 925 (2005).   As in the instant case, where a challenged

statute does not implicate a fundamental right, the court applies

the rational basis test to determine whether the statute violates

due process. People v. Lindner, 127 Ill. 2d 174, 179, 535 N.E.2d

829 (1989); People v. Fuller, 324 Ill. App. 3d 728, 731-32, 756

N.E.2d 255 (2001).

     To withstand a due process challenge under the rational

basis test, the statute in question needs to bear only a rational

relation to a legitimate legislative interest and be neither

arbitrary nor discriminatory. People v. Williams, 349 Ill. App.

3d 273, 274, 811 N.E.2d 1197 (2004).    In applying this test, the

court identifies the public interest the statute is intended to

protect, examines whether the statute bears a reasonable

relationship to that interest, and then determines whether the

method used to protect or further that interest is reasonable.

Lindner, 127 Ill. 2d at 180.

     Here, the primary point of contention is the third step in

the rational basis analysis -- whether the method used to protect

and further an identified public interest is reasonable under the

particular facts in this case.    The Registration Act was enacted

to protect children from sexual assault and sexual abuse by

providing the public with information regarding the whereabouts

of convicted sex offenders. See People v. Logan, 302 Ill. App. 3d


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319, 328-29, 705 N.E.2d 152 (1998); Fuller, 324 Ill. App. 3d at

732.

       Defendant contends that his automatic classification as a

sex offender under section 2(B)(1.5) of the Act based upon his

pleading guilty to aggravated kidnaping is unreasonable and

arbitrary in violation of his substantive due process rights

where the offense was not committed with a sexual motivation or

purpose.    We agree.

       The record indicates that defendant's offense of aggravated

kidnaping was not sexually motivated.    There were no allegations

of any kind that defendant or codefendants committed or attempted

to commit any sexual assault against the minor.    In addition, in

sentencing defendant and his codefendants, the trial court noted

that even though the grandmother's clothes were removed and she

was bound during the course of the kidnaping, this was done as a

means of control and that none of the allegations against the

defendants involved sexual assault.

       The State primarily relies on this court's decision in

People v. Fuller, 324 Ill. App. 3d 728, 731-32, 756 N.E.2d 255

(2001), in support of its contention that the Registration Act is

not unconstitutional as applied to defendant.    However, the facts

in Fuller are clearly distinguishable from the facts in the case

at bar.

       The facts in Fuller indicated that the crime was sexually

motivated, as shown by the reviewing court's following


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observations and comments:

     "In defendant's own case, the arresting police officer

     testified that when the officer asked defendant what he

     planned to do with the children, defendant 'stated he was

     going to find a hotel room and ask the girl if she had any

     friends.'   This statement, eerily suggestive of the nature

     of defendant's plans for the children, in conjunction with

     defendant's conduct in failing to release the children

     themselves support the logical nexus between the act of

     kidnaping a child and the very real possibility of

     subsequent sexual exploitation of that child." Fuller, 324

     Ill. App. 3d at 733-34.

     Unlike Fuller, under the particular facts in this case,

there is no rational basis for requiring defendant to register as

a sex offender where he has no history of committing sex offenses

and his offense of aggravated kidnaping was not sexually

motivated and had no sexual purpose.   Consequently, defendant has

met his burden of establishing that the Registration Act, as

applied to him, violates his substantive due process rights under

the state and federal constitutions where his designation as a

sex offender bears no rational relationship to the State's

interest in protecting the public from convicted sex offenders.

     Courts in other jurisdictions have reached the same

conclusion when faced with similar facts. See, e.g., State v.

Reine, No. 19157 (Ohio App. 2d Dist. 2003); State v. Robinson,


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873 So. 2d 1205 (Fla. 2004); People v. Moi, 8 Misc. 3d 1012(A),

801 N.Y.S.2d 780 (N.Y. County Ct. 2005).

     Accordingly, for the reasons set forth above, we reverse the

judgment of the circuit court and remand for further proceedings

consistent with this opinion.

     Reversed and remanded.

     SOUTH, J., concurs.

     WOLFSON, J., specially concurring in part and dissenting in

part.




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     JUSTICE WOLFSON, specially concurring in part and dissenting

in part:

     I have no quarrel with sending the case back to give defense

counsel the opportunity to file a Rule 604(d) certificate,

although the need for it is not entirely clear.   I do disagree

with the notion that the defendant's right to due process of law

would be violated by applying the Registration Act to him.

     As the majority says, a penal statute should be upheld as

long as there is a conceivable basis for finding a reasonable

relationship to the public interest intended to be protected.

People v. Kohrig, 113 Ill. 2d 384, 398, 498 N.E.2d 1158 (1986).

     As we said in People v. Fuller, 324 Ill. App. 3d 728, 733,

756 N.E.2d 255 (2001):

     "While the term 'sex offender' may carry a stigma, there is

     little doubt that the offense of kidnaping a person under 18

     is intended to trigger the Registration Act."

     True, the court in Fuller pointed out an "eerily suggestive"

statement by the defendant ("I was going to find a hotel room and

ask the girl if she had any friends."), but the decision was not

locked into its specific facts. Fuller, 324 Ill. App. 3d at 733.

It is the nature of the crime -- kidnaping a child -- that


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triggers the Registration Act provisions.    Fuller observed that

the "most obvious connection" between aggravated kidnaping and

the purpose of the Registration Act is that the crime "is often a

precursor offense to juvenile pimping or exploitation of a child

***." Fuller, 324 Ill. App. 3d at 733.

     It does not take much imagination to add to the list of

reprehensible acts an offender might commit.    Once an offender

makes the decision to commit the aggravated kidnaping of a child,

there is a very real possibility the child will become a victim

of sexual abuse.    Our Reports are filled with such cases.

     In this case the crime was interrupted while it was in

progress.   The child was being held in a stolen van when the

police arrived.    The legislature has the authority to protect

children from such an offender.    Requiring him to register his

name and address with law enforcement officials does not offend

due process of law.    I respectfully dissent from the majority's

decision that it does.




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