                                        2017 IL App (3d) 150154

                              Opinion filed September 12, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 9th Judicial Circuit,
                                                     )       Knox County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-15-0154
            v.                                       )       Circuit No. 14-CF-47
                                                     )
     CARLOS A. JACKSON,                              )       Honorable
                                                     )       Paul L. Mangieri,
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justice McDade specially concurred, with opinion.
           Justice O’Brien concurred in part and dissented in part, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The defendant, Carlos A. Jackson, appeals from his conviction arguing that the charging

     instrument was deficient. In addition, the defendant contends that the Sex Offender Registration

     Act (the Act) (730 ILCS 150/3(b) (West 2014)) and other related statutes applicable to sex

     offenders (collectively, the SORA statutory scheme) are unconstitutional.

¶2                                               FACTS

¶3          The State charged the defendant with “Unlawful Failure to Register as a Sex Offender.”

     The information alleged:
                     “defendant, a sex offender required to register every 90 days, knowingly failed to

                     register in accordance with the provisions of the Sex Offender Registration Act

                     with the chief of police of Galesburg, Illinois, within 90 days of his last

                     registration on November 12, 2013, after having been convicted of Unlawful

                     Failure to Register as a Sex Offender in Knox County Case 08 CF 402 in

                     violation of 730 ILCS 150/3(b).”

¶4           At the defendant’s bench trial, Becky Grohmann, an administrator for the Galesburg

     police department, testified that the defendant began registering with the Galesburg police

     department in 1996 as a result of a Michigan conviction for aggravated criminal sexual abuse.

     According to Grohmann, the defendant was required to register every 90 days with the

     Galesburg police department. To accomplish this, the defendant needed to appear at the police

     department and sign a form to register every 90 days. The defendant was told on the date of

     registration the deadline for the next 90-day period. The defendant registered on November 12,

     2013, and signed a sex offender registration form with the police department. The defendant was

     required to register again by February 10, 2014. The defendant failed to register before

     February 10, 2014, and was arrested on February 17, 2014, when he appeared at the police

     station to register.

¶5           The November 12, 2013, sex offender registration form was admitted into evidence. The

     form includes a list of duties that the offender is required to initial. One duty is that the defendant

     was required to “register” again in person with the police department within 90 days. The

     defendant’s initials appear next to this duty. The form includes a line bearing the defendant’s

     signature after the statement, “I have read and/or had read to me, the above requirements. It has

     been explained to me and I understand my duty to register next on or before 02-10-2014.”


                                                        2
¶6            The defendant testified on his own behalf. The defendant admitted that he failed to

       register by February 10, 2014, because he believed he had a 10-day grace period.

¶7            Ultimately, the circuit court found the defendant guilty and sentenced the defendant to

       three years’ imprisonment.

¶8                                                ANALYSIS

¶9            On appeal, the defendant argues that his conviction is void because the State failed to

       charge him with an offense. The defendant also argues that the SORA statutory scheme is

       unconstitutional. We discuss each argument in turn.

¶ 10                                       I. The Charging Instrument

¶ 11          The defendant argues deficiencies in the charging instrument render his conviction void

       for lack of jurisdiction. The State concedes the information erroneously cited section 3 of the Act

       (730 ILCS 150/3(b) (West 2014)), while the factual allegations made in the information describe

       a violation of section 6 of the Act (730 ILCS 150/6 (West 2014)). In addition, the State concedes

       the information used the word “register” instead of “report” as defined in section 6 of the Act

       (730 ILCS 150/6 (West 2014)). However, the State argues that these deficiencies do not render

       the defendant’s conviction void.

¶ 12          Section 111-3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/111-3

       (West 2014)) requires that the charging instrument cite “the statutory provision alleged to have

       been violated.” However, “the mere reference in a charging instrument to an incorrect chapter or

       section of a statute is regarded as a formal rather than a substantive defect.” People v. McBrien,

       144 Ill. App. 3d 489, 495 (1986). Formal defects do not require reversal unless the defendant

       establishes prejudice from the defect. Id. “Only where the defendant demonstrates prejudice will




                                                        3
       the mere fact that a criminal complaint contains an incorrect citation to the criminal statute be

       grounds for dismissal of the conviction.” People v. Melton, 282 Ill. App. 3d 408, 415 (1996).

¶ 13          It is well-settled that where a charging instrument is challenged in a pretrial motion, the

       charging instrument will be dismissed if it does not strictly comply with the requirements of

       section 111-3 of the Code. E.g., People v. Rowell, 229 Ill. 2d 82, 93 (2008). It is equally well-

       settled that where an indictment is challenged for the first time on appeal, a defendant must show

       prejudice in the preparation of his defense. People v. Davis, 217 Ill. 2d 472, 479 (2005). In that

       context, an information will be deemed “sufficient if it apprised the accused of the precise

       offense charged with sufficient specificity to prepare his defense and allow pleading a resulting

       conviction as a bar to future prosecution arising out of the same conduct.” People v. Gilmore, 63

       Ill. 2d 23, 29 (1976).

¶ 14          In this case, the defendant is raising a challenge to the charging information for the first

       time on appeal. He is therefore required to show resulting prejudice in the preparation of his

       defense. The defendant, however, has put the full force of his argument on appeal behind the

       legal theory that his conviction is void and he is not obligated to show prejudice in the

       preparation of his defense. He makes no alternative argument that he actually did suffer

       prejudice. In any event, the record would contradict any such argument.

¶ 15          The language of the information made clear the defendant was being accused of a

       violation of section 6 of the Act. Section 6 requires a sex offender to report to a law enforcement

       agency “no later than 90 days after the date of his or her last registration.” 730 ILCS 150/6 (West

       2014). The information alleged that the defendant “failed to register in accordance with the

       provisions of the Sex Offender Registration Act with the chief of police of Galesburg, Illinois,

       within 90 days of his last registration on November 12, 2013 *** in violation of 730 ILCS


                                                        4
       150/3(b).” Section 3 of the Act requires sex offenders to register “within 3 days of beginning

       school, or establishing a residence, place of employment, or temporary domicile.” 730 ILCS

       150/3(b) (West 2014). Despite the erroneous citation and the mistaken use of the term “register”

       rather than “report,” it is clear from the facts described in the information that the defendant was

       being charged with a violation of section 6 rather than section 3.

¶ 16          More importantly, while the defendant argues that the term “register” and “report” have

       different meanings under the Act, we fail to see how the mistaken use of these terms prejudiced

       the defendant in preparing his defense. See People v. Brock, 2015 IL App (1st) 133404, ¶¶ 18, 24

       (finding that section 6 of the Act does not impose a registration requirement and “one can

       ‘report’ without registering.”). The defendant admitted that he knew he was required to appear at

       the police department every 90 days. He also admitted that he failed to appear at the police

       department before the 90-day period expired because he mistakenly believed he was entitled to a

       10-day grace period. In other words, the defendant’s entire defense revolved around whether he

       knowingly violated section 6 of the Act based on his mistaken belief. The defendant fails to

       explain how his defense would have changed had the information used the term “report” rather

       than “register.” Reversal of the defendant’s conviction, therefore, is unwarranted. Although the

       defendant was not “perfectly” charged, he was “properly” charged. (Internal quotation marks

       omitted.) Melton, 282 Ill. App. 3d at 416.

¶ 17          In reaching this conclusion, we reject the defendant’s argument that the alleged defects in

       the information deprived the circuit court of subject matter jurisdiction and rendered his

       conviction void. Illinois courts are granted subject matter jurisdiction for criminal cases by the

       Illinois Constitution, which grants circuit courts original jurisdiction over all “justicable

       matters.” Ill. Const. 1970, art. VI, § 9; see also People v. Benitez, 169 Ill. 2d 245, 255 (1996);


                                                         5
       Gilmore, 63 Ill. 2d at 26. That is, “jurisdiction is not conferred by information or indictment, but

       rather by constitutional provisions.” Benitez, 169 Ill. 2d at 256. Accordingly, a defective

       charging instrument does not deprive the circuit court of jurisdiction. Id.; People v. Pankey, 94

       Ill. 2d 12, 17 (1983).

¶ 18                            II. The Constitutionality of the SORA Statutory Scheme

¶ 19          Next, the defendant challenges the constitutionality of the current version of the SORA

       statutory scheme, which he is now subject to for an extended period of time because of his

       present conviction. We review de novo a challenge to the constitutionality of a statute on appeal.

       People v. Mosley, 2015 IL 115872, ¶ 22. Statutes are presumed to be constitutional and, in order

       to overcome this strong presumption, the defendant must “clearly establish its invalidity.” Id. “A

       court will affirm the constitutionality of a statute or ordinance if it is ‘reasonably capable of such

       a determination’ and ‘will resolve any doubt as to the statute’s construction in favor of its

       validity.’ ” Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶ 20 (quoting People v. One

       1998 GMC, 2011 IL 110236, ¶ 20). The defendant makes two arguments in support of his

       contention: (1) the SORA statutory scheme has become punitive in nature; and (2) the SORA

       statutory scheme violates the due process clauses of the United States and Illinois Constitutions.

       U.S. Const. amend. XIV; Ill. Const. 1970, art. I, § 2. We discuss each argument in turn.

¶ 20          First, the defendant acknowledges that our supreme court has previously upheld the

       constitutionality of earlier versions of the SORA statutory scheme against constitutional

       challenges (e.g., People v. Cornelius, 213 Ill. 2d 178 (2004); People v. Malchow, 193 Ill. 2d 413

       (2000)), but he contends that the SORA statutory scheme is different than the versions

       determined to be constitutional in prior case law because it has become so onerous it has crossed

       the threshold from a civil regulatory scheme to a system of punishment. The defendant urges this


                                                         6
       court to reevaluate the current SORA statutory scheme under the factors outlined in Kennedy v.

       Mendoza-Martinez, 372 U.S. 144 (1963) to determine whether the SORA statutory scheme has

       become punitive rather than regulatory.

¶ 21            We note, however, that the supreme court in Cornelius and Malchow examined whether

       the SORA statutory scheme was “punitive” under Mendoza-Martinez in response to an argument

       that it imposed unconstitutional ex post facto criminal penalties. Cornelius, 213 Ill. 2d at 206-07;

       Malchow, 193 Ill. 2d at 421. The defendant does not make an ex post facto claim. Nor does he

       argue that the Mendoza-Martinez factors support a constitutional claim that is independent of the

       ex post facto clause. Instead, the defendant makes a general claim that the additional burdens

       created by recent amendments require a “re-examination of prior decisions on this issue.” We

       have a duty to avoid constitutional questions—such as the merits of the defendant’s argument

       that the SORA statutory scheme is punitive—whenever possible. In re E.H., 224 Ill. 2d 172, 180

       (2006). Because the defendant makes no specific ex post facto claim in arguing for a

       reexamination of the SORA statutory scheme, we will not consider the question of whether the

       current version of the SORA statutory scheme imposes unconstitutional ex post facto criminal

       penalties under the Mendoza-Martinez factors.

¶ 22            In any event, despite dedicating much of his brief analyzing the Mendoza-Martinez

       factors, the thrust of the defendant’s argument on appeal is that the SORA statutory scheme

       violates his due process rights. Therefore, we focus our analysis on the narrower constitutional

       grounds offered by the defendant. That is, we consider the merits of the defendant’s due process

       claim.

¶ 23            The fourteenth amendment to the United States Constitution and article I, section 2, of

       the Illinois Constitution protect individuals from the deprivation of life, liberty, or property


                                                         7
       without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Due process

       analysis requires two inquiries: substantive due process and procedural due process. See Doe v.

       City of Lafayette, 377 F.3d 757, 767-68 (7th Cir. 2004); In re J.R., 341 Ill. App. 3d 784, 791

       (2003). As to procedural due process, the government is only allowed to deprive a citizen of

       “life, liberty, or property” in accordance with certain procedural protections. City of Lafayette,

       377 F.3d at 767-68. Under substantive due process, the appropriate inquiry is “whether the

       individual has been subjected to ‘the arbitrary exercise of the powers of government,

       unrestrained by the established principles of private rights and distributive justice.’ ” Id. at 768

       (quoting Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819)).

                      “Where the statute does not affect a fundamental constitutional right, the test for

                      determining whether the statute complies with substantive due process is the

                      rational basis test. [Citation.] To satisfy this test, a statute need only bear a

                      rational relationship to the purpose the legislature sought to accomplish in

                      enacting the statute. [Citation.] Pursuant to this test, a statute will be upheld if it

                      ‘bears a reasonable relationship to a public interest to be served, and the means

                      adopted are a reasonable method of accomplishing the desired objective.’ ” In re

                      J.W., 204 Ill. 2d 50, 67 (2003) (quoting People v. Adams, 144 Ill. 2d 381, 390

                      (1991)).

¶ 24          The defendant argues that the SORA statutory scheme violates the procedural due

       process rights of sex offenders because it fails to provide a mechanism by which offenders with a

       low chance of recidivism can seek removal or exclusion from SORA’s requirements and

       restrictions. The defendant also argues that the SORA statutory scheme violates the substantive

       due process rights of sex offenders because it infringes on fundamental rights or, in the


                                                          8
alternative, fails a rational basis review. The defendant points out the 2014 version of the SORA

statutory scheme now includes the following new provisions:

       (1) requirement that every sex offender register if convicted of any subsequent felony

(730 ILCS 150/3(c)(2.1) (West 2014));

       (2) increased the agencies with which a registrant must register in person (730 ILCS

150/3(a), (d) (West 2014) (must register if residing or temporarily domiciled in a place for three

or more days, registrant to notify authorities in the place where he resides and authorities at his

travel destination if he travels for three or more days, and required personal reporting to public

safety or security director of any higher education institution at which registrant works or

attends));

       (3) expanded the information a registrant must provide when reporting (730 ILCS

150/3(a) (West 2014) (current photograph, place of employment, telephone numbers, employers

telephone number, school attended, email addresses, instant messaging identities, chat room

identities, and other internet communications identities that registrants uses or plans to use, all

Uniform Resource Locators registered or used by the registrant, a copy of terms and conditions

of parole or release, county of conviction, license plate numbers for every vehicle, age of

registrant and victim at the time of offense, any distinguishing marks located on the registrant’s

body, and whether registrant is living in a household with a child under 18 years old who is not

his own child));

       (4) increased number of times a registrant must report in person (730 ILCS 150/6 (West

2014) (requires reporting of individuals without fixed residences every week, individuals who

change residences, and any additional times law enforcement requests));

       (5) increased length of time most registrants must register (730 ILCS 150/7 (West 2014));


                                                  9
              (6) shortened period a registrant must appear in person from ten to three days (730 ILCS

       150/3(b), (c)(3), (c)(4) (West 2014));

              (7) increased initial and annual registration fees (730 ILCS 150/3(c)(6) (West 2014));

              (8) increased punishment for noncompliance (730 ILCS 150/7, 10 (West 2014));

              (9) requiring the annual renewal of registrant’s driver’s license (730 ILCS 5/5-5-3(o)

       (West 2014));

              (10) restricting the presence of offenders within a school zone, and prohibiting offenders

       from approaching, contacting, residing with, or communicating with a child within certain places

       by child sex offenders (720 ILCS 5/11-9.3 (West 2014)); and

              (11) making it unlawful for a child sex offender or sexual predator to knowingly be

       present or loiter within 500 feet of any public park building or on real property comprising any

       public park, at all times, without limitation (720 ILCS 5/11-9.4-1 (West 2014)).

¶ 25          In considering the constitutionality of the above provisions, we observe that two other

       districts in our appellate court have rejected the very same constitutional arguments that the

       defendant asserts here. See In re A.C., 2016 IL App (1st) 153047, ¶¶ 35-79 (rejecting due process

       challenges to the 2014 version of the SORA statutory scheme as applied to a juvenile offender)

       and People v. Pollard, 2016 IL App (5th) 130514, ¶ 23 (rejecting the defendant’s procedural and

       substantive due process claims to the 2014 version of SORA statutory scheme). The appellate

       court in these cases found that the SORA statutory scheme did not violate an individual’s due

       process rights. However, in People v. Pepitone, 2017 IL App (3d) 140627, pet. for leave to

       appeal granted, No. 122034 (May 24, 2017), this court recently rejected the reasoning in A.C.

       and Pollard, as to section 11-9.4-1 of the SORA statutory scheme (720 ILCS 5/11-9.4-1 (West

       2014)). Specifically, this court held that section 11-9.4-1, which prohibits child sex offenders and


                                                       10
       sexual predators from being present or loitering near parks, was overly broad and not reasonably

       related to its goal. Pepitone, 2017 IL App (3d) 140627, ¶¶ 22-24. Therefore, we found

       section 11-9.4-1 unconstitutional on due process grounds. Id. Pepitone did not examine any of

       the other provisions of the SORA statutory scheme. Upon review, we continue to follow

       Pepitone as to the park restriction; however, we agree with the conclusions reached in A.C. and

       Pollard and adopt their reasoning with respect to the remaining restrictions challenged by the

       defendant.

¶ 26           In A.C., respondent, a juvenile adjudicated as a delinquent of aggravated criminal sexual

       abuse, appealed challenging the constitutionality of the current version of the SORA statutory

       scheme (the same statutory scheme the defendant challenges here). A.C., 2016 IL App (1st)

       153047. Respondent argued the SORA statutory scheme violated his due process rights. With

       regard to the respondent’s procedural due process claim, the A.C. court observed that the SORA

       statutory scheme did not “implicate protected liberty or property interests” (id. ¶ 63) and

       concluded that it was appropriate to apply the SORA statutory scheme to juveniles given its

       intent to protect the public and our supreme court’s decisions that the SORA statutory scheme

       affords respondents sufficient procedural safeguards. Id. ¶ 66. As to respondent’s substantive due

       process claim, the court concluded that respondent’s claim did not involve a fundamental liberty

       right and rejected his contention that under the rational basis test the SORA statutory scheme

       violated substantive due process rights as it is “rationally related to the purpose of protection of

       the public from sexual offenders and constitute a reasonable means of accomplishing this goal.”

       Id. ¶ 57.

¶ 27           Along the same lines, the court in Pollard reached a similar conclusion where the

       defendant also challenged the constitutionality of the current version of the SORA statutory


                                                        11
       scheme. Pollard, 2016 IL App (5th) 130514. The court found that the defendant’s procedural due

       process rights were not violated as the defendant enjoyed several procedural safeguards

       associated with his criminal proceedings and the registration obligations were “not sufficiently

       burdensome to mandate the additional procedural protection of a mechanism to determine his

       risk of recidivism.” Id. ¶ 48. As to the defendant’s substantive due process claim, the court

       observed the category of “fundamental rights” is a narrow one, and “[o]ur supreme court has

       held that sex offender registration provisions do not affect fundamental rights.” Id. ¶ 35. The

       court then rejected the defendant’s claim that the SORA statutory scheme did not pass the

       rational basis test because it “advanc[ed] the government’s legitimate goal to protect children

       from sexual predators.” Id. ¶ 43.

¶ 28          By contrast, in Pepitone, this court parted ways with A.C. and Pollard with respect to the

       statute making it unlawful for a child sex offender or sexual predator to knowingly be present in

       any public park building or on real property comprising any public park, at all times, without

       limitation (720 ILCS 5/11-9.4-1 (West 2014)). In Pepitone, this court found the restriction

       unconstitutional on substantive due process grounds as it failed the rational basis test. In so

       holding, this court rejected the opposite conclusion in Pollard, finding that the statute swept too

       broadly in that it criminalized innocent conduct. Pepitone, 2017 IL App (3d) 140627, ¶¶ 13, 14.

       This court noted that the premise of the statue, which is based on the “vague notion that a child

       or other ‘target’ may be present in a public park,” was overbroad as the presence of such a

       person is “certainly not guaranteed, and, in light of the particular circumstances, may not even be

       likely.” Id. ¶ 22. The statute was also overbroad because it criminalized “substantial amounts of

       innocent conduct, including the walking of a dog,” among numerous other activities. Id. ¶ 23. In

       addition, the statute failed to include a provision that would consider the risk of the offender. Id.


                                                        12
       ¶ 22. In other words, the statute lacked a provision for offenders with a low risk of recidivism of

       any mechanism by which they can be removed or excluded from the restriction. Id. This court,

       therefore, concluded that the statutory subsection was facially unconstitutional because it is not

       reasonably related to its goal of protecting the public from individuals fitting the definition of a

       child sex offender or sexual predator. Id. ¶ 24.

¶ 29          Accordingly, based on the above precedent, we agree with the defendant’s contention that

       the statute prohibiting the presence of child sex offenders and sexual predators from being

       present or loitering near a park is unconstitutional. See id. ¶ 24. We otherwise reject the

       defendant’s contention that the remaining restrictions included in the current version of the

       SORA statutory scheme violate his substantive or procedural due process rights. See A.C., 2016

       IL App (1st) 153047, ¶¶ 57, 66; Pollard, 2016 IL App (5th) 130514, ¶¶ 44, 48.

¶ 30          Finally, I, as the authoring judge, note that I share the same concerns expressed in Justice

       McDade’s special concurrence that the growing burdens included in the SORA statutory scheme

       severely impede a released offender’s ability to reintegrate into society after serving his or her

       sentence.

¶ 31                                             CONCLUSION

¶ 32          The judgment of the circuit court of Knox County is affirmed.

¶ 33          Affirmed.

¶ 34          JUSTICE McDADE, specially concurring.

¶ 35          The majority affirms the defendant’s conviction for unlawful failure to register as a sex

       offender (supra ¶ 16). At the outset, I concur with Justices Holdridge’s and O’Brien’s finding

       that the defendant was properly charged with the offense of unlawful failure to register as a sex

       offender (supra ¶ 16). I also concur with Justice Holdridge’s finding that section 11-9.4-1(b) of

                                                          13
       the SORA statutory scheme (hereinafter “SORA”) (720 ILCS 5/11-9.4-1(b) (West 2014)) is

       unconstitutional on its face (supra ¶ 29). Additionally, I concur with Justices Holdridge’s and

       O’Brien’s finding that the remaining provisions of SORA are constitutional (supra ¶ 29).

       However, I write separately on this final issue to express my concerns with the increasing

       restrictions included in SORA.

¶ 36          SORA began as a concept intended to protect the public from the danger posed by

       released sex offenders. See Adams, 144 Ill. 2d at 387 (holding that the legislative intent in

       requiring the registration of sex offenders was to create an additional protection for children from

       the increasing incidence of sexual assault and child abuse). Since then, SORA has become

       increasingly onerous with regard to the amount of information a sex offender must disclose, the

       number of agencies to which the information must be disclosed, and how often a sex offender

       must register. SORA currently includes provisions that directly restrict where a prior offender

       can live, work, and even how he or she can move about the community on a daily basis. I have

       two specific concerns with the current iteration of SORA pertinent to this appeal.

¶ 37          First, its reach is incredibly broad. Specifically, the legislature has failed to include any

       provision to narrow the scope of its application by distinguishing between those offenders who

       are likely to reoffend and those who are not. In other words, critically absent from SORA is any

       mechanism by which a former offender can be exempted from its restrictions by showing that he

       or she is not a significant risk to reoffend. Without such a mechanism, all offenders will be

       equally burdened, despite the fact that some pose little or no threat to children or others.

¶ 38          Second, the constant narrowing of the registration requirements in SORA make it nearly

       impossible, over the course of a lifetime (for some offenders), to maintain faithful compliance

       with the law. For example, the current version increases the number of times a registrant must


                                                        14
       report in person and shortens the period within which he or she must appear in person to register

       from 10 days to 3 days. See 730 ILCS 150/6, 3(b), (c)(3), (c)(4) (West 2014)). The more frequent

       in-person registrations and shortened time frame make it more likely that an offender will run

       afoul of the regulation and become subject to additional criminal prosecution. Further, there are

       no exceptions to the in-person registration requirement. Thus, no registrant can present a valid

       excuse for failing to report in time—even one who is confined to the hospital as in one recent

       case in this court.

¶ 39           As a consequence of the above restrictions, a released offender is severely impeded in his

       or her ability to find employment, decide where to live, have free access to public spaces and

       move freely throughout the state or country. In other words, these provisions make it nearly

       impossible for an offender to reintegrate normally into society after serving their prison term. I

       acknowledge that Illinois courts have held that residency, employment, and notification

       provisions in SORA do not violate an offender’s due process rights. See People v. Avila-Briones,

       2015 IL App (1st) 132221, ¶ 75 (rejecting claim that prohibition on sex offender’s presence near

       school property affected fundamental rights); Rodrigues v. Quinn, 2013 IL App (1st) 121196, ¶ 7

       (provision requiring revocation of nursing license for convicted sex offender did not affect

       fundamental rights because the right to pursue a profession is not a fundamental right for due

       process purposes); People v. Morgan, 377 Ill. App. 3d 821, 826-27 (2007) (rejecting defendant’s

       ex post facto challenge to residency restriction); People v. Leroy, 357 Ill. App. 3d 530, 534

       (2005) (rejecting claim that residency restriction affected fundamental right to decide where to

       live because defendant did not have a fundamental right “to live with his mother and enjoy her

       support within 500 feet of a school.”); J.W., 204 Ill. 2d at 67 (holding that sex offender

       registration provisions do not affect fundamental rights). Even so, I am compelled to express my


                                                        15
       concern that an increasingly restrictive SORA has moved in a direction that is at odds with not

       only the basic foundational principles of our constitution: that all individuals, including those

       who have committed a crime and served their sentence, should be afforded the right to life,

       liberty, and the pursuit of happiness, but also with such basic rights of citizenship as equal access

       to the benefits and services supported by their taxes and the fair representation of their elected

       officials.

¶ 40           In sum, I believe the legislature has failed to equitably balance the various human

       interests impacted by SORA. As it stands, SORA fails to consider reasonable interests which an

       offender who has completed the sentence the legislature deemed sufficient, especially one who is

       unlikely to reoffend, has in resuming a normal family and work life.

¶ 41           JUSTICE O’BRIEN, concurring in part and dissenting in part.

¶ 42           The majority affirms defendant’s conviction for unlawful failure to register as a sex

       offender (supra ¶ 16). In doing so, the majority makes three independent legal findings. I will

       address each finding in turn.

¶ 43           First, I concur in the majority’s finding that defendant was properly charged with the

       offense of unlawful failure to register as a sex offender (supra ¶ 16). I agree that the charging

       instrument sufficiently apprised defendant of the precise offense charged. Stated another way,

       the instrument did not deprive defendant of his ability to prepare his defense.

¶ 44           Second, I dissent from the majority’s finding that section 11-9.4-1(b) of the SORA

       statutory scheme (720 ILCS 5/11-9.4-1(b) (West 2014)) is unconstitutional on its face (supra

       ¶ 29). In its analysis, the majority cites this court’s previous decision in Pepitone. The majority

       in Pepitone found section 11-9.4-1(b) unconstitutional on substantive due process grounds. I

       reject the majority’s reasoning in Pepitone and instead adopt that of the dissent. In my view, the


                                                        16
       means adopted in section 11-9.4-1(b) “are a reasonable method of accomplishing the

       legislature’s desired objective of protecting the public from sex offenders.” Pepitone, 2017 IL

       App (3d) 140627, ¶ 31 (Carter, J., dissenting).

¶ 45          Significantly, the rational basis test only requires that the statute have a rational

       relationship to the government objectives. Avila-Briones, 2015 IL App (1st) 132221, ¶ 83. “By

       keeping sex offenders who have committed sex offenses against children away from areas where

       children are present, the legislature could have rationally sought to avoid giving those sex

       offenders an opportunity to reoffend.” Pepitone, 2017 IL App (3d) 140627, ¶ 32 (Carter, J.,

       dissenting) (citing Avila-Briones, 2015 IL App (1st) 132221, ¶ 84; Pollard, 2016 IL App (5th)

       130514, ¶ 42).

¶ 46          The majority in this case does not reach the issue of whether section 11-9.4-1(b) satisfies

       procedural due process requirements in light of the fact it found the provision violated

       defendant’s substantive due process rights. Given that I would find section 11-9.4-1(b) satisfies

       substantive due process, I would consider whether the provision complies with procedural due

       process requirements. Because the SORA statutory scheme does not implicate protected liberty

       or property interests and because it affords defendant sufficient procedural safeguards, I would

       find that section 11-9.4-1(b) also does not violate defendant’s procedural due process rights. See

       Pollard, 2016 IL App (5th) 130514, ¶ 48; A.C., 2016 IL App (1st) 153047, ¶¶ 63, 66. Therefore,

       I would conclude that section 11-9.4-1(b) satisfies substantive and procedural due process

       requirements. See Pollard, 2016 IL App (5th) 130514; A.C., 2016 IL App (1st) 153047.

¶ 47          Finally, I concur with the majority’s finding that the remaining provisions of the SORA

       statutory scheme are constitutional (supra ¶ 29). As the majority observes, two other districts in

       our appellate court have rejected the very same constitutional arguments that defendant asserts


                                                         17
       here. See A.C., 2016 IL App (1st) 153047, ¶¶ 35-79 (rejecting due process challenges to the

       SORA statutory scheme as applied to a juvenile offender) and Pollard, 2016 IL App (5th)

       130514, ¶ 23 (rejecting defendant’s procedural and substantive due process claims to the SORA

       statutory scheme). Like the majority, I agree with the reasoning in both cases, and would find

       that the remaining provisions of the SORA statutory scheme do not violate defendant’s

       substantive or procedural due process rights.

¶ 48          Accordingly, I would affirm defendant’s conviction and also find that the entire SORA

       statutory scheme, including section 11-9.4-1(b), does not violate defendant’s constitutional due

       process rights.




                                                       18
