                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                               People v. Cardona, 2013 IL 114076




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
Court:                     HERNANDO CARDONA, Appellant.



Docket No.                 114076


Filed                      March 21, 2013


Held                       Where there was a charge of unlawful restraint of a young girl but the
(Note: This syllabus       accused was unfit to be tried criminally, an order for him to register as a
constitutes no part of     sex offender did not deny due process where entered at a civil “discharge”
the opinion of the court   or “innocence only” hearing pursuant to statute at which findings were
but has been prepared      made that the offense was sexually motivated and that the accused was
by the Reporter of         not not guilty.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the Second District; heard in that
Review                     court on appeal from the Circuit Court of Lake County, the Hon. Fred
                           Foreman, Judge, presiding.



Judgment                   Affirmed.
Counsel on               Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal                   Defender, and Kathleen D. Weck, Assistant Appellate Defender, of the
                         Office of the State Appellate Defender, of Chicago, for appellant.

                         Lisa Madigan, Attorney General, of Springfield, and Michael Nerheim,
                         State’s Attorney, of Waukegan (Michael A. Scodro, Solicitor General,
                         and Michael M. Glick and Leah Myers Bendik, Assistant Attorneys
                         General, of Chicago, of counsel), for the People.


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



                                            OPINION

¶1        Defendant, Hernando Cardona, appealed from an order of the circuit court of Lake
      County certifying him as a sex offender under the Sex Offender Registration Act (SORA)
      (730 ILCS 150/1 et seq. (West 2008)). On appeal, defendant argued, inter alia, that the sex
      offender certification should be vacated because it resulted from a violation of his procedural
      due process rights. The appellate court affirmed. 2012 IL App (2d) 100542. Defendant again
      appealed, and this court allowed his petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb.
      26, 2010)).

¶2                                      BACKGROUND
¶3        Defendant was charged by indictment with one count of indecent solicitation of a child
      (720 ILCS 5/11-6(a) (West 2008)) and one count of unlawful restraint (720 ILCS 5/10-3(a)
      (West 2008)). Shortly thereafter, the trial court ordered an evaluation of defendant’s fitness
      to stand trial. The clinical psychologist who evaluated defendant reported to the court that,
      among other things, defendant showed signs of “an acute thought disorder”; was “not
      oriented to place, person, and situation”; appeared to be in “an acute schizophrenic state”;
      and was incapable of understanding the nature and purpose of the legal proceedings or
      assisting in his defense. Based on these observations, the psychologist recommended that
      defendant be found unfit to stand trial. The trial court agreed, found defendant unfit, and
      ordered him transferred to the Elgin Mental Health Center for further evaluation and
      treatment.
¶4        After more than a year at the mental health center, defendant still had not been restored
      to fitness. Consequently, defense counsel moved for a discharge hearing. See 725 ILCS
      5/104-25 (West 2008). In response, and pursuant to section 115-10 of the Code of Criminal
      Procedure of 1963 (725 ILCS 5/115-10 (West 2008)), the State filed a notice of intent to call

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     certain witnesses who would testify as to statements that A.K., the child victim, had made
     to them. The trial court held a section 115-10 hearing and concluded that the proffered
     statements were sufficiently reliable to be admitted as substantive evidence at trial or, in the
     absence of a trial, the discharge hearing.
¶5       The discharge hearing commenced nearly two years after the events leading to the
     charged offenses took place. At the discharge hearing, the now 13-year-old victim, A.K.,
     testified that, on the afternoon of May 18, 2007, she was walking home from school when
     she heard her friend, D.H., calling her name. A.K. stopped walking and waited for D.H. to
     catch up. When D.H. caught up to A.K., she told A.K. that a man had been chasing her. The
     two friends then walked together for a time but separated again when D.H. turned a corner
     to meet her sister. Shortly after that, a man grabbed A.K. by the wrist and said to her, in a
     Spanish accent, that “whether [she] liked it or not, [she] was going to go with him.” A.K.
     then tried to pull her wrist free from the man’s grasp and when she could not break free, she
     kicked the man in the shin. At that point, the man let her go, and A.K. immediately ran away
     down the street toward her home. When she looked back, the man was no longer pursuing
     her but was now heading in the opposite direction away from her. Although A.K. did not get
     a good look at the man’s face, she did notice that he was wearing black shoes that were “kind
     of torn up.” A.K. recognized the shoes as those that were worn by a man who walked around
     “every day” by her school, a man she identified in court as defendant. A.K. could not recall
     one way or the other whether the man who grabbed her said anything to her about wanting
     to have sex with her.
¶6       D.H. testified that, on the afternoon in question, she was walking home from school when
     an older man whom she had seen before began approaching her. The man was wearing jeans
     and black shoes that “looked torn up like with holes in them.” D.H. ran from the man and
     caught up with her friend, A.K. D.H. told A.K. about the man, and the two friends walked
     together to the corner, at which point D.H. turned while A.K. continued straight. D.H.
     identified defendant in court as the man who approached her that day.
¶7       A.K.’s father testified that, on the afternoon in question, he was standing in his front yard
     when A.K. ran up to him, crying and out of breath. A.K. was very shaken up and told him
     that something had happened to her, that a man grabbed her and told her that he “[was] going
     to have sex with her.” A.K.’s father immediately called the police. A few days later, A.K.’s
     father spotted a man in the neighborhood whom he believed was the man who had grabbed
     his daughter. A.K.’s father testified that this man walked around their neighborhood “almost
     daily,” and that the man was wearing a “worn-out, black pair of Converse” shoes that
     matched the description given by A.K. A.K.’s father identified defendant in court as the man
     he saw that day.
¶8       Officer Michael Taylor, a juvenile officer for the City of Waukegan, testified that he
     interviewed A.K. five days after the incident. A.K. first told Taylor about her encounter with
     D.H., in which D.H. reported that a man had been following her. A.K. then told Taylor that,
     after she and D.H. parted ways, a man grabbed A.K. by the right arm and asked her, in a
     Spanish accent, if she wanted to have sex with him. When A.K. replied that she did not, the
     man told A.K., “You need to.” A.K. then tried to pull away from the man’s grasp, and when
     she could not, she kicked the man twice in the shin. At that point, the man let her go, and

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       A.K. ran away. Although A.K. did not get a good look at the man’s face, she was able to
       describe his clothing, including his black tennis shoes. D.H. later identified defendant in a
       photo lineup as the man who was following her that afternoon.
¶9         At the close of evidence, the trial court found defendant not guilty of the indecent
       solicitation charge. In doing so, the court stated in its written judgment order that there was
       “conflicting testimony” that left “some doubt” as to whether defendant verbally solicited
       A.K. for sex. As to the unlawful restraint, the trial court found that defendant should not be
       acquitted of that charge and therefore entered a finding of not not guilty.
¶ 10       Following the discharge hearing, the trial court ordered defendant to undergo further
       mental health treatment. Several months later, as defendant’s term of extended treatment was
       coming to a close, the Illinois Department of Human Services reported to the trial court that
       defendant “remains Unfit to Stand Trial and, Unlikely to be restored to Fitness.” In addition,
       the Department reported that defendant did not meet the criteria for civil commitment, as he
       did not pose a serious threat of harm either to himself or to others. At that point, the State
       filed a motion asking the trial court to certify defendant as a sex offender on the grounds that
       the unlawful restraint of which defendant was not acquitted was “sexually motivated.” See
       730 ILCS 150/2(B)(1), (1.5) (West 2008). The trial court granted the State’s motion and
       entered an order (1) finding that defendant did not meet the criteria for civil commitment;
       (2) finding that one or more of the facts underlying the unlawful restraint indicated an intent
       to engage in behavior of a sexual nature; and (3) ordering defendant to register as a sex
       offender.
¶ 11       The trial court subsequently denied defendant’s motion to reconsider, and defendant
       appealed. On appeal, defendant raised two arguments. First, he argued that the evidence was
       insufficient to support the trial court’s finding that the unlawful restraint was sexually
       motivated. Second, he argued that his constitutional right to procedural due process was
       violated “in that he was deprived of liberty without a meaningful opportunity to be heard.”
       2012 IL App (2d) 100542, ¶ 46. The appellate court rejected both of these arguments and
       affirmed the trial court’s judgment. Id. ¶ 54.1
¶ 12       This court allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb.
       26, 2010)).

¶ 13                                         DISCUSSION
¶ 14       Before this court, defendant no longer contests the sufficiency of the evidence to support
       the trial court’s finding that the unlawful restraint was sexually motivated. Instead, he argues
       only that his right to procedural due process was violated.
¶ 15       A procedural due process claim presents a legal question subject to de novo review.


               1
                 The appellate court also addressed a jurisdictional argument raised by the State. See 2012
       IL App (2d) 100542, ¶¶ 28-30. Although the State included that argument in its brief before this
       court, it later withdrew the argument at oral argument in light of factual points brought out in
       defendant’s reply brief. We therefore have no cause to discuss or address that issue in this decision.

                                                    -4-
       People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009). Procedural due process claims
       challenge the constitutionality of the specific procedures used to deny a person’s life, liberty,
       or property. Id. The fundamental requirements of due process are notice of the proceeding
       and an opportunity to present any objections. Id. Due process is a flexible concept, and “ ‘not
       all situations calling for procedural safeguards call for the same kind of procedure.’ ” Lyon
       v. Department of Children & Family Services, 209 Ill. 2d 264, 272 (2004) (quoting Morrissey
       v. Brewer, 408 U.S. 471, 481 (1972)). Courts should consider the following factors in
       evaluating a procedural due process claim:
                “ ‘First, the private interest that will be affected by the official action; second, the risk
                of an erroneous deprivation of such interest through the procedures used, and the
                probable value, if any, of additional or substitute procedural safeguards; and finally,
                the Government’s interest, including the function involved and the fiscal and
                administrative burdens that the additional or substitute procedural requirement would
                entail.’ ” Lyon, 209 Ill. 2d at 277 (quoting Mathews v. Eldridge, 424 U.S. 319, 335
                (1976)).
       Statutory enactments are presumed constitutional, and to overcome that presumption, the
       party challenging the statute must clearly establish a constitutional violation. Konetski, 233
       Ill. 2d at 200.
¶ 16        Here, we are hard pressed to apply the familiar Mathews factors, and most especially the
       second and third factors, as defendant does not identify for this court what “additional or
       substitute procedural safeguards” he is seeking. On the contrary, defendant’s position, which
       was implicit in his opening brief and then made explicit in his reply brief, is that, given his
       unfitness to stand trial, “no additional procedural safeguards will be adequate” to protect his
       procedural due process rights in this case. It is defendant’s position that, even if he were
       granted the full panoply of procedural rights afforded to adult criminal defendants, including
       the right to a jury trial, any resulting sex offender certification would still violate his
       procedural due process rights because, as someone who is legally unfit to stand trial, he is
       incapable of participating meaningfully in any proceeding in which his life, liberty, or
       property is at stake.2
¶ 17        Given the nature of defendant’s argument, this court faces something of an analytical
       dilemma. This is because, although defendant insists that he is bringing a procedural due
       process challenge, and although all of the case law he cites and applies relates to procedural
       due process, it appears to us that defendant’s challenge is more in the nature of a substantive
       due process challenge. This court has explained that, “[w]hereas procedural due process
       governs the procedures employed to deny a person’s life, liberty or property interest,
       substantive due process limits the state’s ability to act, irrespective of the procedural
       protections provided.” In re Marriage of Miller, 227 Ill. 2d 185, 197 (2007); see also People
       v. Tenner, 206 Ill. 2d 381, 394-95 (2002) (noting the distinction between prosecuting a
       potentially unfit defendant without first holding a fitness hearing, which is a procedural due


               2
               Defense counsel reiterated this at oral argument, telling the court that, in light of
       defendant’s mental unfitness, “there are no procedures that can actually compensate for this man.”

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       process violation, and prosecuting an actually unfit defendant, which is a substantive due
       process violation). In other words, a procedural due process claim asserts that the deprivation
       at issue is constitutionally invalid because the process leading up to it was deficient, whereas
       a substantive due process claim asserts that the deprivation at issue is constitutionality
       invalid in and of itself, irrespective of the process leading up to it.
¶ 18        Viewed in this light, defendant’s claim in this case certainly appears to be one of
       substantive due process. Again, defendant’s position is not that he was denied the process
       he was due, or that different or additional procedural safeguards would have rendered his sex
       offender certification constitutionally valid. Rather, defendant’s position is that, because he
       can neither understand the nature and purpose of the proceedings nor assist his attorney in
       his defense, there are no procedural safeguards that the State could provide to constitutionally
       permit defendant’s certification as a sex offender. Stated differently, defendant’s position is
       that subjecting him, a legally unfit defendant, to proceedings resulting in sex offender
       certification is and always will be fundamentally unfair, irrespective of the procedural
       protections provided. That is a textbook substantive due process claim.
¶ 19        The problem this creates for us is this: By insisting that there are no procedural
       safeguards sufficient to permit the sex offender certification of a defendant who has been
       found legally unfit to stand trial, defendant to a large degree nullifies his procedural due
       process claim. Indeed, the State cannot deny that which it cannot provide. At the same time,
       defendant neither invokes nor applies even the basic principles of substantive due process,
       thereby precluding this court from considering his argument in those terms. See Ill. S. Ct. R.
       341(h)(7) (eff. July 1, 2008) (“[p]oints not argued are waived”). Under these circumstances,
       we believe that the only legitimate (and certainly most prudent) course is to consider, as best
       we can, only whether defendant has satisfied his burden with respect to the claim he is
       purporting to bring—that is, a procedural due process violation—and leave for another day
       any consideration of the substantive due process claim that is lurking just beneath the
       surface. See, e.g., Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7-8 (2003)
       (where respondent invoked only procedural due process principles, Court refused to recast
       respondent’s procedural due process challenge to the Connecticut sex offender registration
       statute as a substantive due process challenge).
¶ 20        So with those preliminaries out of the way, we now turn to the merits of defendant’s
       procedural due process claim. SORA’s definition of “sex offender” includes any person who
       is charged with a “sex offense” and who “is the subject of a finding not resulting in an
       acquittal at a [discharge] hearing *** for the alleged commission or attempted commission
       of such offense.” 730 ILCS 150/2(A)(1)(d) (West 2008). Here, defendant was charged with
       indecent solicitation of a child, which is always a “sex offense,” and unlawful restraint,
       which is a “sex offense” only when the victim is under 18 years of age, the defendant is not
       the victim’s parent, and the offense was “sexually motivated” as that term is defined in
       section 10 of the Sex Offender Management Board Act. 730 ILCS 150/2(B)(1), (1.5) (West
       2008). At the conclusion of defendant’s discharge hearing, the trial court acquitted defendant
       of indecent solicitation of a child but found him not not guilty of unlawful restraint. At the
       State’s request, the trial court later entered a finding that the unlawful restraint was “sexually
       motivated.” At that point, defendant fell squarely within SORA’s definition of “sex

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       offender,” and the trial court therefore ordered him to comply with SORA’s registration
       requirements.
¶ 21       Defendant argues that his certification as a sex offender must be vacated because the
       proceedings that led to it were constitutionally deficient from a procedural due process
       standpoint. Conspicuously absent from defendant’s argument, however, is any mention of
       what specific procedural safeguards were lacking. This is critical because “[t]he fundamental
       requirements of due process are notice of the proceeding and an opportunity to present any
       objections” (Konetski, 233 Ill. 2d at 201), and here, no one could possibly dispute that
       defendant received both of these things. The record confirms, and defendant does not
       dispute, that defendant was given full and adequate notice of both the charges against him
       and all of the subsequent proceedings. Throughout, defendant was represented by appointed
       counsel who, among other things, advocated zealously on his behalf, thoroughly cross-
       examined the State’s witnesses, opposed the State’s request for a finding that the unlawful
       restraint was sexually motivated, and filed a motion to reconsider that finding once it was
       made. Defendant had the statutory right to present evidence and call witnesses on his behalf
       (725 ILCS 5/104-25(a) (West 2008)), was protected at all times from conviction by the
       standard of proof beyond a reasonable doubt (725 ILCS 5/104-25(b) (West 2008)), and had
       the right to appeal any finding other than acquittal (725 ILCS 5/104-25(f) (West 2008)). And
       because he speaks only limited English, defendant received the regular assistance of a court-
       appointed interpreter. In short, although defendant did not receive the full spectrum of
       procedural safeguards afforded to criminal defendants, defendant did “receive[ ] several other
       important procedural protections before being required to register under [SORA].” Konetski,
       233 Ill. 2d at 202.
¶ 22       In arguing that his right to procedural due process was violated, defendant at no point
       suggests what specific procedural safeguards he should have received either instead of or in
       addition to those set forth above. Rather, defendant’s entire argument seems to be that it
       violates procedural due process to subject an unfit defendant to any proceeding in which life,
       liberty, or property is at stake because, by definition, such a defendant cannot understand or
       participate in it meaningfully. But as we have already said, due process is a flexible concept,
       and not all situations calling for procedural safeguards call for the same kind of procedure.
       Or to put it another way, procedural due process is founded upon the notion that, prior to a
       deprivation of life, liberty, or property, a party is entitled to “ ‘notice and opportunity for [a]
       hearing appropriate to the nature of the case.’ ” (Emphasis added.) Jones v. Flowers, 547
       U.S. 220, 223 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
       313 (1950)).
¶ 23       In many ways, the question before us was effectively settled in People v. Waid, 221 Ill.
       2d 464 (2006). In that case, this court explained that, while the due process clause
       categorically bars the criminal prosecution of a defendant who is not competent to stand trial,
       the State may hold a discharge hearing with respect to such a defendant, even though an
       extended period of treatment and even involuntary civil commitment may result. Id. at 480.
       The reason for this is that a discharge hearing is not a criminal prosecution. Rather, it is an
       “innocence only” hearing that is civil in nature and “simply enables an unfit defendant to
       have the charges dismissed if the State does not have the evidence to prove he committed the

                                                  -7-
       charged offenses beyond a reasonable doubt.” Id. As a result, the due process considerations
       are very different, and a defendant in a discharge hearing simply is not entitled to the same
       degree of procedural safeguards as a defendant in a criminal prosecution. Id.
¶ 24         In light of Waid, the only question that remains for us today is whether the procedural
       safeguards of a discharge hearing, which are sufficient to permit the extended treatment and
       possible involuntary commitment of an unfit defendant, are sufficient also to permit the sex
       offender certification of an unfit defendant. We hold that they are. To begin with, it is worth
       repeating that sex offender registration is not punishment. Konetski, 233 Ill.2d at 203. Rather,
       it is a regulatory scheme designed to foster public safety. Id. Accordingly, like persons facing
       an extended treatment period following a discharge hearing, persons facing sex offender
       registration are simply not entitled to the same level of procedural protection as those facing
       criminal punishment. Id. Moreover, if not released, an unfit defendant who is found not not
       guilty faces an initial treatment period of from one to five years. And if that defendant’s
       condition does not improve, and certain other factors are present, this initial period can then
       be extended for up to the maximum sentence term to which the defendant would have been
       subject if convicted of the charged offense. In some cases, this will be decades. This is a
       substantial deprivation of liberty, and certainly greater than any that might be faced by an
       unfit defendant who is released from custody entirely, subject only to compliance with
       SORA. Though defendant attempts to make the case that the released sex offender suffers
       a greater loss of liberty than the person who, though not certified a sex offender, is
       involuntarily committed for 10, 15, or even 30 years, we are not persuaded by this even for
       a moment. Having one’s freedom of movement eliminated is undeniably more burdensome
       than having it restricted, and without deciding whether sex offender registration itself
       implicates a constitutionally protected liberty interest, we have no difficulty saying that the
       procedural safeguards that constitutionally permit involuntary commitment also permit sex
       offender certification. Accordingly, we reject defendant’s argument that his procedural due
       process rights were violated in this case.
¶ 25         Before concluding, we wish to address one last point. At various points throughout both
       of his briefs, as well as at oral argument, defendant argues that it is fundamentally unfair to
       subject him to sex offender registration because he has never been convicted of committing
       a triggering offense. At one point, for example, defendant points out that “he has never been
       convicted of a crime for which sex offender registration is required.” At another point, he
       notes that his “guilt has never been adjudicated, because he is unfit for trial and cannot be
       legally tried.” At still another point, defendant argues that “the court’s ‘not not guilty’ finding
       is being treated exactly like a conviction for purposes of SORA” and that “the government
       did an end-run around [his] due process rights as a person unfit for trial in order to reach the
       result it wanted, which was certification of this unfit defendant as a sex offender.” The
       problem with this argument is that it assumes that the category “sex offender” is reserved for
       persons who are actually convicted of a triggering offense, and that defendant is somehow
       being manipulated into that category through unusual, if not improper, means. Nothing could
       be further from the truth. The category “sex offender” is entirely a creature of statute, and
       there are several ways a person can acquire that label, only one of which is criminal
       conviction of a triggering offense. Other ways include being found not guilty of a triggering

                                                  -8-
       offense by reason of insanity, being adjudicated a juvenile delinquent as a result of
       committing a triggering offense, and, yes, being the subject of a finding not resulting in
       acquittal at a discharge hearing. See 730 ILCS 150/2(A)(1)(b)-(d), 5 (West 2008). In other
       words, defendant is not being subject to sex offender certification despite being found not
       not guilty of a triggering offense. Rather, being found not not guilty of a triggering offense
       is the very definition of “sex offender.” The State did not do “an end-run” around anything.
       SORA includes persons like defendant in the statutory definition of “sex offender,” and the
       State has every right to utilize and enforce that statute just as it is written.

¶ 26                                    CONCLUSION
¶ 27      For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 28      Affirmed.




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