                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Cardona, 2012 IL App (2d) 100542




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



District & No.             Second District
                           Docket No. 2-10-0542


Filed                      March 2, 2012


Held                       The appellate court affirmed the trial court’s ruling at a certification
(Note: This syllabus       hearing requiring defendant, who was acquitted of indecent solicitation
constitutes no part of     of a child and found not not guilty of unlawful restraint at a discharge
the opinion of the court   hearing held after his schizophrenia raised the issue of his fitness, to
but has been prepared      register as a sex offender, notwithstanding defendant’s contention that the
by the Reporter of         trial court could not logically find that the unlawful restraint was sexually
Decisions for the          motivated when defendant was acquitted of indecent solicitation, since
convenience of the         the evidence more than “indicated” that defendant was motivated to
reader.)
                           engage in conduct of a sexual nature.


Decision Under             Appeal from the Circuit Court of Lake County, No. 07-CF-2036; the
Review                     Hon. Fred L. Foreman, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Kathleen Weck, both of State Appellate Defender’s
Appeal                     Office, of Elgin, for appellant.

                           Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                           and Gregory L. Slovacek, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Bowman and Hutchinson concurred in the judgment and opinion.




                                              OPINION

¶1          Defendant, Hernando Cardona, appeals the trial court’s certification of his sex offender
        status. For the following reasons, we affirm.

¶2                                        I. BACKGROUND
¶3                                       A. Underlying Facts
¶4          On May 18, 2007, the victim, A.K., then in fifth grade and age 11, was walking home
        from school. A friend and classmate, D.H., called out to A.K. to wait. D.H. told A.K. that “a
        man” was following her and she did not want to walk alone. A.K. walked with D.H. to the
        corner, and D.H. turned off to go home. A.K. was then alone.
¶5          Soon after, A.K. felt the man grab her wrist from behind. The man spoke some words to
        A.K., the content of which are in dispute, but he allegedly stated that he wanted to have sex
        with her. After some struggle, A.K. kicked the man in the shin and broke free.
¶6          A.K. ran home and told her father what happened. Her father called the police. The man
        was later determined to be defendant, age 51 and a diagnosed schizophrenic. Defendant was
        apprehended as a result of D.H.’s positive identification and A.K.’s corroborating
        information.
¶7          A grand jury indicted defendant on two counts: (1) indecent solicitation of a child (in that
        defendant, a person of 17 years of age and upwards, with the intent that the offense of
        predatory criminal sexual assault of a child be committed, knowingly solicited A.K., a child
        under the age of 17 years, to perform an act of sexual penetration (720 ILCS 5/11-6(a) (West
        2008))); and (2) unlawful restraint (in that defendant knowingly and without authority
        detained A.K., grabbing A.K. and holding her against her will (720 ILCS 5/10-3(a) (West
        2008))).


                                                  -2-
¶8                                    B. Section 115-10 Hearing
¶9         The State moved to permit testimony, pursuant to section 115-10 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/115-10 (West 2008)), of out-of-court statements made by
       A.K. to her father and to Officer Michael Taylor, describing the acts that comprised the
       elements of the charged offenses. The trial court conducted a hearing to determine whether
       the time, content, and circumstances of the statements provided sufficient safeguards of
       reliability to be admitted as substantive evidence at the upcoming trial.
¶ 10       A.K.’s father testified that, on the afternoon in question, he was standing outside in his
       front yard when A.K. ran up to him, crying and out of breath. A.K. was hyperventilating and
       would not calm down. Finally, A.K. was able to tell her father that a man grabbed her on the
       way home from school and said he wanted to have sex with her.
¶ 11       Taylor testified that he was a juvenile officer for the City of Waukegan with 14 years of
       experience. He also completed a 40-hour class involving interview techniques for child
       victims and witnesses. Part of his duties included teaching a Drug Abuse Resistence
       Education (DARE) class to fifth-grade students at A.K.’s school. Taylor knew A.K. because
       she had attended his DARE class once per week over the course of the school year. Taylor
       interviewed A.K. in the principal’s office at the school.
¶ 12       Taylor asked A.K. if she knew why he was conducting the interview. A.K. responded that
       it was because of the man who followed her home from school. A.K. indicated the route that
       she had taken home, noting that she walked part of the way with D.H. She knew that
       defendant had been following D.H. After D.H. turned a corner, defendant (who had
       temporarily left the girls’ sight) grabbed A.K. by the wrist and, in an Hispanic accent, asked
       A.K. if she wanted to have sex with him. A.K. told defendant, “No.” Defendant then made
       a statement to the effect of: “You know you want to.” A.K. tried to pull away. Defendant hit
       A.K. on the arm with his free hand. A.K. kicked defendant in the shin, broke free, and ran
       away. Defendant continued to follow her. He was not running, but he was walking fast. A.K.
       made it home, where she saw her father in the front yard.
¶ 13       Taylor stated that A.K. looked embarrassed when relating that defendant had asked for
       sex; she looked down and did not look Taylor in the face. However, A.K. did not seem
       particularly comfortable at any point in the interview, not just those portions pertaining to
       defendant’s request for sex. Taylor stated that the information relayed by A.K., even after a
       half-hour of questioning, contained zero inconsistencies.
¶ 14       Although A.K. was able to relate certain features concerning defendant’s identity (i.e.,
       clothing, accent, general appearance), she was not able to identify him in a photo lineup. She
       declined to point to any of the photos. She told Taylor that, during the attack, she had been
       too afraid to look defendant in the face (it was D.H. who had identified defendant).
¶ 15       The trial court deemed A.K.’s out-of-court statements sufficiently reliable to be admitted
       at the upcoming trial. Of particular note to the court was the spontaneous and consistent
       nature of the statements. The court also pointed to A.K.’s refusal to identify defendant in a
       photo lineup, essentially stating that no ulterior motive tempted A.K. to make a potentially
       false identification.


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¶ 16                            C. Unfitness and Discharge Hearing
¶ 17        Meanwhile, shortly after defendant had been charged, the trial court ordered a fitness
       evaluation. The clinical psychologist reported that defendant appeared to be in an acute
       schizophrenic state, was an unreliable historian (once stating that he moved from
       “Atahualpa,” which is not a real location but a sixteenth-century Inca ruler), and could not
       communicate the offense with which he was charged (even with the help of his Spanish-
       speaking translator). The court ruled defendant unfit to stand trial and ordered that he be
       placed in the Elgin Mental Health Center.
¶ 18        After more than a year at the mental health center, defendant’s providers were unable to
       restore him to fitness. Therefore, defense counsel moved for a discharge hearing, a
       proceeding where an unfit defendant is tried before a court without a jury, where the State
       still has the burden of proving the defendant guilty beyond a reasonable doubt, and where
       one of three findings is made: (1) not guilty (acquittal); (2) not guilty by reason of insanity
       (acquittal); or (3) not “not guilty” (nonacquittal). 725 ILCS 5/104-25 (West 2008).
¶ 19        The court conducted the discharge hearing nearly two years after the charged offense took
       place. By this time, A.K. had just turned 13. The court allowed A.K.’s father and Taylor to
       testify to the out-of-court statements that A.K. made to them following the incident. In the
       section 115-10 hearing, the court had deemed these statements sufficiently reliable to be
       admitted as substantive evidence at trial, and, in the absence of a trial, they would be
       admitted as substantive evidence at the discharge hearing. Both A.K.’s father and Taylor
       testified that A.K. told them that, while grabbing her, defendant stated that he wanted sex.
¶ 20        A.K. testified consistently with the statements she had given to her father and to
       Taylor–with one significant discrepancy. When asked on direct examination what defendant
       said to her, A.K. answered: “He said that whether I liked it or not, I was going to go with
       him.” When asked directly if defendant ever said anything along the lines of, “I want you to
       have sex with me,” A.K. answered: “Not that I remember.” The State asked A.K. to clarify,
       and A.K. again stated that she did not remember “one way or the other” whether defendant
       mentioned sex. During cross-examination, A.K. again stated that she had no memory of
       defendant saying anything about sex.
¶ 21        At the close of evidence, the trial court ruled as follows. As to the indecent solicitation
       charge, the court entered an acquittal finding of “not guilty,” stating in the written form
       order: “The evidence does not prove the defendant guilty beyond a reasonable doubt.
       Judgment of acquittal is granted.” The court noted that there was “conflicting testimony” that
       left “some doubt” as to what defendant actually said to A.K. (i.e., whether defendant verbally
       solicited A.K. for sex).
¶ 22        As to the unlawful restraint charge, the court entered a nonacquittal finding of “not ‘not
       guilty,’ ” stating in the written form order: “Based on a standard of proof beyond a
       reasonable doubt, no acquittal should be entered by this Court. The defendant is not found
       ‘not guilty.’ No judgment of acquittal is entered.” (Emphasis added.)

¶ 23                               D. Certification Hearing
¶ 24      Following the discharge hearing, defendant was remanded to the care of the mental health

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       facility. However, defendant’s extended treatment was set to end within four months. The
       State moved for the court to consider two alternative bases by which to retain supervision
       over defendant: (1) civil commitment (requiring a finding that defendant constituted a serious
       threat to society); or (2) registration as a sex offender (requiring a finding that the crime for
       which defendant received a nonacquittal, i.e., the unlawful restraint, was “sexually
       motivated”). Based on the most recent fitness reports, the court found that defendant did not
       meet the criteria for civil commitment. However, the court required defendant to register as
       a sex offender, finding that one or more of the facts underlying the offense of unlawful
       restraint indicated an intent to engage in behavior of a sexual nature. This appeal followed.

¶ 25                                       II. ANALYSIS
¶ 26       The gravamen of defendant’s appeal is that the trial court cannot logically have found the
       unlawful restraint to have been sexually motivated where the court acquitted him of the more
       traditional sex crime with which he was charged, indecent solicitation. For the reasons that
       follow, we reject this argument. However, we must first address issues of jurisdiction and
       review, and, later, of due process.

¶ 27                                        A. Jurisdiction
¶ 28       As a threshold matter, the State sets forth a jurisdictional issue previously advanced in
       a separate motion to dismiss this appeal. On July 15, 2011, this court denied the motion. The
       State reasserts the issue to preserve the claim for further review, if necessary. The State
       argues that, because defendant’s motion to reconsider the trial court’s order certifying
       defendant as a sex offender was filed more than 30 days after the initial order was entered,
       defendant’s motion was untimely and did not lay a proper basis for appellate jurisdiction
       here.
¶ 29       Defendant responds, and we agree, that, under the circumstances of this case, the court
       was revested with jurisdiction. Under the revestment doctrine, litigants may revest a trial
       court with personal and subject matter jurisdiction after the 30-day period following final
       judgment if they actively participate in proceedings that are inconsistent with the merits of
       the prior judgment. People v. Gutman, 401 Ill. App. 3d 199, 210 (2010) (this portion of
       Gutman was affirmed without comment in People v. Gutman, 2011 IL 110338, ¶ 46).
       Conduct may be considered inconsistent with a prior judgment if it can reasonably be
       construed as an indication that the parties do not view the prior judgment as final and
       binding. Gutman, 401 Ill. App. 3d at 210. If the trial court is revested with jurisdiction, then
       a notice of appeal filed within 30 days after a ruling on the untimely postjudgment motion
       vests the appellate court with jurisdiction. Id.
¶ 30       Here, the trial court granted defendant multiple continuances on the motion to reconsider,
       and the State never once objected. Then, the State participated in the hearing on the motion
       to reconsider, without any objection to its timeliness. By participating in and arguing on the
       merits at the hearing on the motion to reconsider, the State acted as though it did not view
       the prior judgment as binding, revesting the court with jurisdiction.


                                                 -5-
¶ 31                                     B. Standard of Review
¶ 32        The parties first debate whether a nonacquittal of the offense of unlawful restraint of a
       child: (a) requires a defendant to register as a sex offender only if the trial court makes a
       separate, additional finding that the offense was sexually motivated; or (b) triggers an
       automatic mandate that a defendant register as a sex offender (with no deference given to the
       trial court’s registration order). This issue has been addressed directly in People v. Black, 394
       Ill. App. 3d 935, 944 (2009), which held that a trial court must make a specific factual
       determination that the unlawful restraint was sexually motivated in order for a defendant to
       register as a sex offender.
¶ 33        Prior to 2006, a nonacquittal of the offense of unlawful restraint of a child automatically
       required a defendant to register under the Sex Offender Registration Act (SORA) (730 ILCS
       150/1 et seq. (West 2004)). SORA set forth registration requirements for sex offenders,
       including those who had committed the crime of unlawful restraint when the victim was
       under 18 years of age and the perpetrator was not the victim’s parent. 730 ILCS
       150/2(B)(1.5) (West 2004). No further findings were necessary. The rationale was that those
       who commit unlawful restraint or kidnaping of children “pose such a threat to sexually
       assault those children as to warrant their inclusion in the sex offender registry.” (Internal
       quotation marks omitted.) People v. Johnson, 225 Ill. 2d 573, 588 (2007) (quoting, among
       others, In re Phillip C., 364 Ill. App. 3d 822, 831 (2006)).
¶ 34        However, in 2006, the legislature amended SORA and, in the same public act, enacted
       the Child Murderer and Violent Offender Against Youth Registration Act (VOYRA). Pub.
       Act 94-945 (eff. June 27, 2006).1 SORA was amended to define unlawful restraint as a “sex
       offense” when the victim was under 18 years of age, the defendant was not the victim’s
       parent, and the offense was sexually motivated as defined in section 10 of the Sex Offender
       Management Board Act (20 ILCS 4026/10 (West 2006)). Pub. Act 94-945, § 1025 (eff. June
       27, 2006) (amending 730 ILCS 150/2(B)(1.5)). “Sexually motivated” means that one or more
       of the facts underlying the offense indicate conduct that is of a sexual nature or that shows
       an intent to engage in behavior of a sexual nature. 20 ILCS 4026/10(e) (West 2006). The new
       act, VOYRA, set forth registration requirements for violent offenders against youth,
       including those who had committed the crime of unlawful restraint when the victim was
       under 18 years of age and the perpetrator was not the victim’s parent. 730 ILCS 154/5(b)(1)
       (West 2006). Registration under VOYRA, as opposed to SORA, required that, at the time
       of sentencing, the sentencing court verify in writing that the offense was not sexually
       motivated. 730 ILCS 154/86 (West 2006).
¶ 35        The Black court held that, “[r]ead as a whole, the definitions in both SORA and VOYRA
       for the offense of unlawful restraint and the verification provision of VOYRA [that the
       sentencing judge verify in writing that the offense was not sexually motivated] require a
       sentencing judge to make a finding as to whether the offense was sexually motivated or not
       [for registration under either act].” Black, 394 Ill. App. 3d at 942. The court summarized that,


               1
               Neither party discusses VOYRA–or its interplay with SORA–an omission we find
       misleading on the State’s part as to this issue and on defendant’s part as to subsequent issues.

                                                 -6-
       “[i]n order to fulfill its statutory duty under SORA and VOYRA, the sentencing court must
       exercise its discretion and make a determination regarding the existence of sexual
       motivation; it is the only way to effectuate the intent of the 2006 amendments to SORA and
       enactment of VOYRA.” (Emphasis added.) Id.
¶ 36       Therefore, we agree with defendant that a nonacquittal of the offense of unlawful
       restraint of a child requires registration as a sex offender only upon the trial court’s separate
       finding that the offense was sexually motivated, a finding entitled to deference on appeal.
       However, we find that the court’s factual determination should be reviewed according to the
       manifest-weight standard, not the abuse-of-discretion standard. Defendant interprets the
       Black court’s statement that “the sentencing court must exercise its discretion to make a
       determination regarding the existence of sexual motivation” as authority that this court
       should review the trial court’s finding of sexual motivation according to the abuse-of-
       discretion standard. We, however, take the Black court’s use of the word “discretion” to have
       been made in passing. The Black court did not specifically rule on the appropriate standard
       of review; according to our research, no court has. The issue before the Black court was
       whether SORA and VOYRA required a finding regarding the presence or absence of sexual
       motivation to be made at all. Our supreme court has characterized this finding as a factual
       determination. See, e.g., Johnson, 225 Ill. 2d at 582. Therefore, we see no reason to depart
       from the standard of review that is ordinarily used to review a trial court’s factual
       determinations. A trial court’s factual findings should be reversed only if they are against the
       manifest weight of the evidence. See, e.g., Samour, Inc. v. Board of Election Commissioners,
       224 Ill. 2d 530, 544 (2007). A finding is against the manifest weight of the evidence if the
       opposite conclusion is clearly evident or the finding is arbitrary, unreasonable, or not based
       on the evidence. Id.

¶ 37                                   C. Sex Offender Status
¶ 38       Defendant argues that the trial court erred in finding that the offense of unlawful restraint
       against a child was sexually motivated. Defendant requests that this court vacate the trial
       court’s order requiring him to register as a sex offender.
¶ 39       This remedy, even if warranted, is not complete. Per Black, a defendant who commits an
       unlawful restraint against a child must register under either SORA or VOYRA, depending
       on the trial court’s determination of whether the unlawful restraint was sexually motivated.
       Black, 394 Ill. App. 3d at 942. Here, if the trial court had found, and certified in writing, that
       the offense was not sexually motivated, defendant would have had to register under VOYRA.
       In other words, we find defendant’s failure to mention VOYRA misleading, because
       defendant seems to imply that, if the trial court erred in its finding of sexual motivation,
       defendant may simply walk away from his nonacquittal.
¶ 40       In any case, defendant asserts that the evidence does not support a finding that the
       unlawful restraint was sexually motivated where: (1) his schizophrenia and severely limited
       English would have prevented him from communicating a desire to have sex; and (2) he was
       acquitted of the sex crime, indecent solicitation, the acquittal being based on A.K.’s
       testimony that she could not remember whether defendant said anything of a sexual nature


                                                  -7-
       to her.
¶ 41       The first argument–that defendant’s schizophrenia and severely limited English made it
       impossible, not merely doubtful, for him to communicate a desire to have sex–is too
       speculative to consider. It is undisputed that defendant suffered from schizophrenia, required
       a Spanish translator, had difficulty during his fitness evaluation(s) answering questions in a
       relevant manner, and was deemed unfit to stand trial. However, the question of whether
       defendant nevertheless acquired a vocabulary that included the English word “sex,” or would
       have known the English word “sex,” was never before the trial court.
¶ 42       The second argument–that the unlawful restraint could not have been sexually motivated
       where defendant was acquitted of indecent solicitation–while interesting, also fails. The
       inquiry of whether a person is proved guilty beyond a reasonable doubt of indecent
       solicitation (which led to defendant’s acquittal on that charge) is entirely different from the
       inquiry of whether an unlawful restraint was sexually motivated (which led to the finding that
       defendant was required to register as a sex offender). The former requires a finding beyond
       a reasonable doubt that, as indicted, defendant, with the intent that the offense of predatory
       criminal sexual assault of a child be committed, knowingly solicited A.K., a child under age
       17, to perform an act of sexual penetration. 720 ILCS 5/11-6(a) (West 2008) (also including
       solicitation to perform an act of sexual conduct). The latter requires a factual finding that one
       or more of the facts underlying the offense of unlawful restraint indicate conduct that is of
       a sexual nature or that shows an intent to engage in behavior of a sexual nature. 20 ILCS
       4026/10(e) (West 2008). That the State was unable to meet the high burden of proving the
       former does not preclude a court from making the factual finding that the latter, lower
       standard has been satisfied.
¶ 43       The question of whether one or more facts indicated–not proved beyond a reasonable
       doubt–that defendant intended to engage in conduct of a sexual nature is a relatively low bar,
       and we cannot say that the trial court erred in so finding. The testimony of A.K.’s father and
       Taylor–that A.K. told them that defendant told A.K. he wanted to have sex with her–was
       admitted as substantive evidence. A.K.’s statements were (purportedly) made immediately
       after the offense. In contrast, A.K.’s testimony that she did not remember whether defendant
       mentioned sex took place two years after the offense.
¶ 44       Looking at this from a policy perspective, as discussed above, prior to 2006, a
       nonacquittal of unlawful restraint of a child would have been enough in and of itself to
       automatically require a defendant to register as a sex offender. After 2006, a court must
       specifically find that the facts did not indicate a sexual motivation in order to avoid
       registration under SORA. See, e.g., Black, 394 Ill. App. 3d at 942. As courts have
       recognized, those who kidnap or unlawfully restrain children pose a greater risk of
       committing sexual offenses against them. Johnson, 225 Ill. 2d at 588. That courts now
       require a finding of some “indication” that the unlawful restraint was sexually motivated
       does not undermine the original policy. Rather, certain fact patterns where the unlawful
       restraint or kidnaping evinced a complete lack of sexual motivation likely prompted the
       legislature to end the practice of automatic SORA registration. See, e.g., Johnson, 225 Ill.
       2d at 576 (the pre-2006 SORA registration was upheld where the defendant kidnapped her
       20-month-old granddaughter to receive ransom); In re Phillip C., 364 Ill. App. 3d at 825-26

                                                 -8-
       (the pre-2006 SORA registration was upheld, even though there was no evidence that the
       defendant’s motives were sexual in nature; the 17-year-old defendant stuck a knife in the
       back of another teenager, asked him if he was in a gang, and forced him to get into a car and
       drive). The instant case is not anything like Johnson or Phillip C., where evidence supported
       a kidnaping motive of a different character–i.e., monetary or gang-driven. Even setting aside
       the debate of whether our defendant uttered the word “sex,” the evidence here more than
       “indicates” that he wanted A.K. for his own purposes. It would have been difficult for the
       trial court to certify the opposite–that there was no indication that defendant was motivated
       to engage in conduct of a sexual nature.

¶ 45                                  D. Procedural Due Process
¶ 46       Next, defendant argues that his right to procedural due process was violated in that he
       was deprived of liberty without a meaningful opportunity to be heard. See, e.g., Mathews v.
       Eldridge, 424 U.S. 319 (1976). Procedural due process claims must address the following:
       (1) whether the State has interfered with a liberty or property interest; and (2) whether the
       procedures attendant to that deprivation were constitutionally sufficient. Lyon v. Department
       of Children & Family Services, 209 Ill. 2d 264, 272 (2004).
¶ 47       The high courts have, in some instances, avoided the question of whether registration as
       a sex offender implicates a liberty interest. See, e.g., Connecticut Department of Public
       Safety v. Doe, 538 U.S. 1, 7 (2003) (the circuit court found that it did); People ex rel. Birkett
       v. Konetski, 233 Ill. 2d 185, 201-02 (2009) (implying that there might be a liberty interest at
       stake by stating that the liberty interests of a juvenile who is required to register as a sex
       offender, if any, are not as great as those of an adult who is required to register as a sex
       offender). These courts have skipped right to the second prong, finding that, regardless of
       whether registration implicated a liberty interest, the defendant had a meaningful opportunity
       to be heard. We recognize that, prior to Connecticut and Konetski, the Second District held
       that registration under SORA does not deprive the registrant of a protected liberty interest.
       People v. Malchow, 306 Ill. App. 3d 665, 672 (1999); People v. Logan, 302 Ill. App. 3d 319,
       322 (1998). We reasoned that SORA merely compiles truthful, public information. Malchow,
       306 Ill. App. 3d at 672; Logan, 302 Ill. App. 3d at 322. However, we do acknowledge that
       a registrant will certainly face, at least in a colloquial sense, some form of embarrassment or
       stigma, as well as some actual restrictions (involving where he can live and where he can
       work). Therefore, given the higher courts’ apparent reluctance to firmly state that registration
       as a sex offender does not implicate a liberty interest, we follow their lead and resolve this
       issue on the second prong.
¶ 48       Even if registration under SORA implicates a liberty interest, defendant cannot show that
       he was denied a meaningful opportunity to be heard. A defendant is not denied due process
       where he or she is afforded a procedurally safeguarded opportunity to contest the ruling that
       triggered the imposition of the sex offender status (here, the nonacquittal of the unlawful
       restraint). Connecticut, 538 U.S. at 7. Defendant concedes this point. However, defendant
       argues that his situation is distinguishable from that in Connecticut because, in Connecticut,
       the defendant was convicted at trial, whereas, here, defendant received a judgment of


                                                 -9-
       nonacquittal at a discharge hearing. Id. We fail to see how this difference matters, especially
       where statute allows for it. See 730 ILCS 150/2(A)(1)(d) (West 2008); People v. Olsson,
       2011 IL App (2d) 091351, ¶ 6.
¶ 49       Essentially, defendant’s entire argument on this point is that the process rights afforded
       at a criminal trial are different from those afforded at a discharge hearing. Admittedly,
       discharge hearings under section 104-25 do not afford the same procedural rights as criminal
       proceedings. People v. Waid, 221 Ill. 2d 464, 470 (2006). Because the question at a discharge
       hearing is whether to acquit the defendant (i.e., the defendant cannot be found “guilty”), the
       discharge hearing is closer to a civil proceeding (even though section 104-25 is part of the
       Code of Criminal Procedure). Id. Therefore, a discharge hearing does not provide all of the
       procedural protections typically offered in a criminal proceeding, such as the right to
       confrontation. Id. at 480 (allowing reliable hearsay evidence).
¶ 50       In our view, by refusing to extend the procedural rights offered at a criminal trial to a
       discharge hearing, our supreme court in Waid implicitly upheld the sufficiency of the
       procedural rights offered at a discharge hearing. Id. Due process is a flexible concept and not
       all situations call for the same procedural safeguards. Konetski, 233 Ill. 2d at 201. The
       process rights afforded at a discharge hearing are set forth by statute (725 ILCS 5/104-25
       (West 2008)), and defendant does not explain how these procedures are unconstitutional. See
       Konetski, 233 Ill. 2d at 200 (statutory enactments are presumed constitutional). The
       fundamental requirements of due process are notice of the proceeding and an opportunity to
       present any objections. Id. Defendant had this. Defendant had an appointed attorney who was
       able to cross-examine the State’s witnesses. As at a criminal trial, defendant was afforded
       the additional constitutional safeguards of the right to notice, the privilege against self-
       incrimination, and the standard of proof beyond a reasonable doubt. See id. at 201-02 (listing
       several procedural safeguards afforded in juvenile proceedings).
¶ 51       Therefore, we reject defendant’s procedural due process argument.

¶ 52                                 III. CONCLUSION
¶ 53      For the aforementioned reasons, the trial court’s judgment is affirmed.

¶ 54      Affirmed.




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