                                         2018 IL App (1st) 151938
                                                                                  SECOND DIVISION
                                                                                  February 27, 2018

                                             IN THE

                                   APPELLATE COURT OF ILLINOIS

                                         FIRST DISTRICT


                                               No. 1-15-1938



     THE PEOPLE OF THE STATE OF ILLINOIS                   )       Appeal from the
                                                           )       Circuit Court of
            Plaintiff-Appellee,                            )       Cook County, Illinois.
                                                           )
     v. 	                                                  )       No. 11 CR 17332 (01)
                                                           )
     JUAN RODRIGUEZ,                                       )       Honorable
                                                           )       Lauren Ediden,
            Defendant-Appellant.                           )       Judge Presiding.

            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Pucinski and Hyman concurred in the judgment and opinion.

                                                 OPINION

¶1          In May 2013, the State appealed the trial court’s ruling that defendant Juan Rodriguez,

     who was found not not guilty of aggravated criminal sexual assault on the basis of unfitness, was

     not required to register as a sex offender pursuant to the Sex Offender Registration Act (SORA

     or Act) (730 ILCS 150/1 et seq. (West 2012)) because he was incapable of understanding the

     registration requirements. We held that pursuant to People v. Cardona, 2013 IL 114076, ¶ 25,

     “an individual found not not guilty of a sex offense, even on the basis of being found unfit, falls

     within the purview of SORA” and is required to register. (Emphasis in original.) People v.

     Rodriguez, 2014 IL App (1st) 141255-U, ¶ 25.

¶2          On remand, the trial court ordered Rodriguez to register as a sex offender, and Rodriguez

     now appeals that ruling, arguing that the SORA statutory scheme is unconstitutional both on its
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     face and as applied to him, an unfit defendant allegedly incapable of understanding the

     registration requirements. For the reasons that follow, we affirm.

¶3                                             BACKGROUND

¶4          The facts of this case were set forth in detail in our order of December 30, 2014,

     Rodriguez, 2014 IL App (1st) 141255-U, ¶¶ 4-17, and we describe here only those proceedings

     that occurred following remand to the trial court.

¶5          On April 16, 2015, the trial court held a hearing to notify Rodriguez, who was

     represented by counsel, of his obligation to register under SORA. The State read the registration

     requirements to Rodriguez on the record, and they were translated into Spanish. But when

     Rodriguez was asked to sign a document stating that he understood the registration requirements,

     he repeatedly stated “I don’t understand what is this. I don’t know what this is.” In response to

     his counsel’s objection that Rodriguez was incapable of understanding what was required of him,

     the State struck the language indicating otherwise, but Rodriguez persisted in his refusal to sign.

     The trial court then ordered the State to indicate on the form that it was “read and translated in

     open court,” that Rodriguez was present with his attorney and a translator, and that he refused to

     sign. This appeal follows.

¶6                                               ANALYSIS

¶7          The sole issue on appeal is the constitutionality of subjecting unfit defendants found not

     not guilty of sexual assault to SORA’s “statutory scheme,” which, according to Rodriguez,

     encompasses the duty to register (730 ILCS 150/3 (West 2014)), the penalty for noncompliance

     with the registration requirements and the failure to register (id. §§ 7, 10), the limitations on a

     sex offender’s residence and presence in certain locations (720 ILCS 5/11-9.3, 11-9.4-1 (West

     2014)), the requirement that a sex offender must renew his driver’s license yearly (730 ILCS 5/5­



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       5-3(o) (West 2014)), and the prohibition on name changes for sex offenders (735 ILCS 5/21-101

       (West 2014)).

¶8            At the outset, two preliminary matters demand our attention. First, we address the State’s

       argument that the law of the case doctrine bars Rodriguez’s constitutional challenge to SORA.

       The State contends that we decided this issue in our 2014 order holding that Rodriguez was

       required to register as a sex offender. But contrary to the State’s assertion, our holding did not

       rest on constitutional grounds. Rather, we relied on Cardona and engaged in statutory

       interpretation to conclude that, notwithstanding that he was found not not guilty of committing a

       sex offense, Rodriguez met the statutory definition of a sex offender and, as such, was required

       to register under SORA. Rodriguez, 2014 IL App (1st) 141255-U, ¶ 25. Because we did not rule

       on the constitutionality of the SORA statutory scheme, the law of the case does not preclude

       consideration of Rodriguez’s constitutional challenge in this appeal.

¶9            Next, we turn to the issue of standing. The State contends that Rodriguez lacks standing

       to mount a challenge to all but section 3 of SORA, setting forth the registration requirements. In

       order to have standing to challenge the constitutionality of a statute, a person must have suffered

       or be in imminent danger of suffering a direct injury as a result of the statute’s enforcement.

       People v. Greco, 204 Ill. 2d 400, 409 (2003). In other words, a party may not raise a

       constitutional challenge to a statute that does not affect him or her. In re Veronica C., 239 Ill. 2d

       134, 147 (2010).

¶ 10          We have previously considered and rejected the State’s argument that a defendant sex

       offender lacks standing to challenge the limitations on presence and residence applicable to him

       as well as the other civil consequences he faces as a result of his sex offender status (yearly

       renewal of his driver’s license and inability to change his name). See People v. Avila-Briones,



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       2015 IL App (1st) 132221, ¶¶ 40-43; People v. Pollard, 2016 IL App (5th) 130514, ¶¶ 26-27. In

       Avila-Briones, 2015 IL App (1st) 132221, ¶ 41, we explained that the restrictions on residency,

       presence, and name changes, as well as the requirement to renew one’s driver’s license annually,

       are all automatically applicable to a defendant classified as a sex offender. Merely because a

       defendant does not allege that he wishes to live in a certain prohibited location or change his

       name, it does not follow that he is not affected by these laws. Id. ¶ 42. Therefore, Rodriguez has

       standing to challenge these provisions.

¶ 11          However, we agree with the State that Rodriguez lacks standing to challenge section 10

       of SORA (prescribing the penalty for failure to register) because he has not been charged with

       violating that section. The juvenile defendant made a similar claim to standing in In re A.C.,

       2016 IL App (1st) 153047, ¶ 24, which we rejected, explaining that where the respondent had not

       failed to comply with his registration requirements or been charged with a felony, he was not in

       danger of suffering a direct injury as a result of that provision. Similarly, Rodriguez has not

       alleged that he failed to register or that he has been charged with violating SORA’s requirements,

       and as such, he likewise lacks standing to mount a constitutional challenge to this statutory

       section.

¶ 12          Turning to the merits of Rodriguez’s claims, we review a challenge to the

       constitutionality of a statute de novo. People v. Mosley, 2015 IL 115872, ¶ 22. All statutes are

       presumed constitutional, and the party bringing a constitutional challenge bears the burden of

       rebutting that presumption. People v. Hollins, 2012 IL 112754, ¶ 13. If reasonably possible, we

       must construe the statute to affirm its constitutionality and validity. Id.

¶ 13          When confronted with a claim that a statute violates the constitutional guarantee of due

       process, the first step is to determine the nature of the right purportedly infringed by the statute.



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       People v. Cornelius, 213 Ill. 2d 178, 203 (2004). Here, Rodriguez contends that the statute

       infringes on an unfit defendant’s fundamental right to be free from punishment, and as such, is

       subject to strict scrutiny. See Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 307 (2008)

       (statutes implicating fundamental rights are reviewed under strict scrutiny).

¶ 14          Before considering the merits of this claim, we must first determine whether the SORA

       statutory scheme constitutes “punishment” at all. Our supreme court has answered that question

       in the negative on several occasions, most recently in 2013. Cardona, 2013 IL 114076, ¶ 24; see

       also People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 203 (2009); People v. Malchow, 193 Ill.

       2d 413, 424 (2000). Rodriguez acknowledges these holdings, but maintains that they are

       outdated, as the registration requirements and limitations imposed on sex offenders have become

       more onerous since these cases were decided. Specifically, today’s SORA (1) increases the

       number of agencies with which a sex offender must register to include not only police

       departments in the county where the offender resides, but also in the county where he works or

       attends school (730 ILCS 150/3(a), (d) (West 2014)); (2) increases the amount of information a

       sex offender must provide when registering to include a photograph, telephone number, place of

       employment, employer’s telephone number, school attended, information about his qualifying

       offense, information about identifying marks on his body, license plate numbers for vehicles

       registered in his name, and all e-mail addresses, Internet identities, and Internet sites he

       maintains (id. § 3(a)); (3) provides less time to report changes in this information (from 10 days

       to 3 days) (compare id. § 3(b), with 730 ILCS 150/3(b) (West 1998)); (4) increases how often a

       sex offender must register and how often he must report in person (730 ILCS 150/6 (West

       2014)); (5) increases the initial and annual registration fees (id. § 3(c)(6)); (6) imposes harsher

       penalties for noncompliance with registration requirements (id. § 10); and (7) imposes greater



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       restrictions on where a sex offender can live or be present (720 ILCS 5/11-9.3, 11-9.4-1 (West

       2014)).

¶ 15             Determining whether a law imposes punishment turns first on whether the legislature

       intended the law to be punitive or to establish civil consequences. Smith v. Doe, 538 U.S. 84, 92

       (2003); Cornelius, 213 Ill. 2d at 208. Rodriguez does not dispute that with regard to SORA, the

       legislative intent was not to impose additional punishment on sex offenders. However, even

       when the legislature intends to enact a civil regulatory scheme, the law may nevertheless

       constitute punishment if “the clearest proof” shows that it is punitive in purpose or effect.

       Malchow, 193 Ill. 2d at 421 (citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997)); People v.

       Fredericks, 2014 IL App (1st) 122122, ¶ 56. When determining whether an ostensibly civil

       statute has a punitive effect, Illinois courts have applied the seven factor test first set forth in

       Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), which considers whether (1) the

       sanction involves an affirmative disability or restraint, (2) the sanction has historically been

       regarded as punishment, (3) the sanction is applicable only upon a finding of scienter, (4)

       operation of the sanction promotes retribution and deterrence, (5) the behavior to which the

       sanction applies is already a crime, (6) an alternative purpose to which the sanction may

       rationally be connected is assignable to it, and (7) the sanction appears excessive in relation to

       the alternative purpose assigned. See Malchow, 193 Ill. 2d at 421.

¶ 16             We previously applied the Mendoza-Martinez factors to the 2013 SORA in Fredericks,

       2014 IL App (1st) 122122, ¶ 58, and A.C., 2016 IL App (1st) 153047, ¶¶ 77-78, and determined

       that the changes to SORA since Malchow did not render the Act punitive. We reach the same

       conclusion today.




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¶ 17           In the context of sex offender registration statutes, factors three and five are of little

        weight (see Smith, 538 U.S. at 105), and we instead focus on the remaining five factors. With

        regard to the first factor, Rodriguez contends that the requirement of in-person registration

        amounts to an affirmative restraint. But the 1998 SORA imposed an identical requirement, and

        Malchow nevertheless held that the Act did not amount to an affirmative disability as the

        defendant’s movements and activities were not restrained in any way. Malchow, 193 Ill. 2d at

        421. To be sure, the 2014 SORA imposes a shortened time period for complying with the in-

        person registration requirements in certain circumstances, but Rodriguez does not explain how

        this operates as a restraint on his movement.

¶ 18           Turning to the second factor, the act of appearing in person and registering is not

        traditionally regarded as punishment in the same way as mandatory supervised release or parole,

        as Rodriguez contends. Indeed, the Supreme Court rejected this identical argument in Smith,

        when it evaluated Alaska’s SORA. In Smith, the Court explained that “[p]robation and

        supervised release entail a series of mandatory conditions and allow the supervising officer to

        seek the revocation of probation or release in case of infraction,” while under Alaska’s SORA,

        offenders were able to move where they wished without supervision. Smith, 538 U.S. at 101-02.

        Illinois’s SORA, like Alaska’s, does not require offenders to seek permission to move about the

        state, though it requires offenders to inform authorities about their movements. Nor do Illinois

        police have the authority to revoke an offender’s registration as they do for parolees. Because the

        registration requirement is sufficiently dissimilar to parole, we cannot say it has historically been

        regarded as punishment.

¶ 19	          Nor does the SORA scheme promote retribution or deterrence. Rather, as the court held

        in Malchow, it is concerned with ensuring public safety. Malchow, 193 Ill. 2d at 423. Certainly,



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       SORA can also deter crime, but this is a collateral effect of the registration scheme that does not

       detract from the fact that the primary purpose of SORA is to protect the public. And because the

       purpose of SORA is to protect the public, the sixth Mendoza-Martinez factor—whether an

       alternative purpose to which the sanction may rationally be connected is assignable to it—also

       weighs in favor of finding that the SORA statutory scheme is nonpunitive.

¶ 20          Finally, Rodriguez contends that because SORA does not allow a mechanism by which

       an offender can petition for relief from registering when he is no longer a danger, it is

       disproportionate to the need to protect the public—Mendoza-Martinez’s seventh factor. But the

       1998 SORA likewise did not provide for a procedure that would allow an offender to obtain

       relief from the registration requirements, and the supreme court nevertheless found it

       proportional to the purpose of protecting the public. Id. Moreover, today’s SORA in fact has a

       termination provision for juveniles who are adjudicated guilty of sex offenses who pose no risk

       of harm. See 730 ILCS 150/3-5 (West 2014). For these reasons, we conclude that while the

       SORA statutory scheme has become more onerous since 1998, it remains nonpunitive in effect

       under Mendoza-Martinez.

¶ 21          Rodriguez’s arguments to the contrary are premised on cases from outside Illinois. But

       where there is Illinois law on point, we need not, and should not, consider cases from other

       jurisdictions. People v. Qurash, 2017 IL App (1st) 143412, ¶ 34. In any event, the cases to which

       Rodriguez cites are distinguishable. For example, Rodriguez relies on Does #1-5 v. Snyder, 834

       F.3d 696, 705-06 (6th Cir. 2016), where the Sixth Circuit found that Michigan’s sex offender

       registration scheme, although ostensibly a civil regulatory statute, had punitive effects. But as we

       found in People v. Parker, 2016 IL App (1st) 141597, ¶ 64, not only is the Michigan scheme

       distinguishable from the Illinois version of SORA, but the civil plaintiffs in Does also supported



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       their claims with an “extensive demonstration” that included maps depicting the effects of the

       Michigan law’s geographical restrictions on sex offender presence and residence. Rodriguez, just

       as the defendant in Parker, has not presented any comparable evidence of the Illinois scheme’s

       punitive effects.

¶ 22            The remaining cases Rodriguez relies on from Alaska, Oklahoma, Indiana, and Maryland

       are likewise inapposite, as those states, unlike Illinois, have not adopted the Supreme Court’s

       “clearest proof” standard in evaluating whether a law has a punitive effect, and instead accept a

       different standard of proof. See Doe v. State, 189 P.3d 999 (Alaska 2008); Starkey v. Oklahoma

       Department of Corrections, 2013 OK 43, 305 P.3d 1004; Gonzalez v. State, 980 N.E.2d 312

       (Ind. 2013); Doe v. Department of Public Safety & Correctional Services, 62 A.3d 123 (Md.

       2013).

¶ 23            Because we have determined that the burdens imposed on those subject to SORA’s

       statutory scheme are not punitive so as to override the legislature’s intent to create a civil

       sanction, Rodriguez’s argument that the scheme violates his fundamental right to be free from

       punishment necessarily fails. But this is not the end of the analysis. Rodriguez’s failure to

       identify a fundamental right merely results in the application of rational basis review to the

       SORA statutory scheme. See, e.g., In re J.W., 204 Ill. 2d 50, 67 (2003) (finding that SORA did

       not implicate fundamental rights and applying rational basis review); People v. Bingham, 2017

       IL App (1st) 143150, ¶ 19, appeal allowed, No. 122008 (Ill. May 24, 2017) (same); Avila-

       Briones, 2015 IL App (1st) 132221, ¶ 81 (same).

¶ 24            Importantly, rational basis review is highly deferential to the legislature; it is not

       concerned with the wisdom of the statute or whether it is the best means to achieve the desired

       outcome. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 125-26 (2004). Rather, “[s]o long as



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       there is a conceivable basis for finding the statute rationally related to a legitimate state interest,

       the law must be upheld.” Id. at 126.

¶ 25           Rodriguez maintains that SORA fails rational basis review as it is both overinclusive and

       underinclusive. Specifically, he argues that the law is overinclusive because it encompasses

       offenders in its broad net who are unlikely to recidivate and underinclusive because it allows

       those who pose a greater risk of recidivism to escape its reach by pleading guilty to lesser

       offenses. But under rational basis review, “a statute ‘is not fatally infirm merely because it may

       be somewhat underinclusive or overinclusive.’ ” Avila-Briones, 2015 IL App (1st) 132221, ¶ 83

       (quoting Maddux v. Blagojevich, 233 Ill. 2d 508, 547 (2009)). Here, despite being in certain

       ways under- or overinclusive, the SORA statutory scheme is rationally related to protecting the

       public from sex offenders, which is a legitimate state interest.

¶ 26           SORA enables law enforcement to monitor the whereabouts of sex offenders. And “by

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

       children are present (e.g., school property and parks) and out of professions where they could

       come in contact with children (e.g., driving an ice cream truck, being a shopping-mall Santa

       Claus), or vulnerable people (e.g., driving an emergency services vehicle),” the legislature

       rationally limited the opportunities sex offenders have to reoffend. Id. ¶ 84; see also People v.

       Pollard, 2016 IL App (5th) 130514, ¶¶ 41-43. But see People v. Pepitone, 2017 IL App (3d)

       140627, ¶ 24, appeal allowed, No. 122034 (Ill. May 24, 2017) (holding that section 11-9.4-1(b),

       prohibiting sex offenders from being present in public parks, is facially unconstitutional because

       it criminalizes potentially innocent conduct); People v. Jackson, 2017 IL App (3d) 150154, ¶ 29

       (same). Thus, although the scheme may be imperfect, it is rationally related to the legitimate

       state interest of protecting the public from sex offenders and not unconstitutional on its face.



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¶ 27          Rodriguez’s argument that the statutory scheme is unconstitutional as applied to him

       fares no better. Rodriguez maintains that his “cognitive and physical defects” “make reoffending

       next to impossible” and also make him unable to comprehend and comply with the SORA

       statutory scheme. But Rodriguez suffered from the same cognitive defects at the time he was

       charged with the offense that led to this proceeding; he has not alleged any new defects that

       would prevent him from committing a similar offense in the future. And we rejected Rodriguez’s

       contention that he was incapable of understanding or complying with the registration

       requirements in our earlier decision:

              “The evidence adduced during the discharge hearing demonstrates that Rodriguez

              has some level of cognitive functioning as was evident when he partially closed

              the apartment’s blinds, presumptively to conceal his actions, made sexual

              advances to J.K. when no other adult was home, repeatedly pushed and restrained

              J.K. and had a condom in his pocket that he showed to K.J. and stated ‘it’s okay, I

              got protection.’ Further, Rodriguez’ initial statement to Officer Domenech

              indicating, in an effort to deflect responsibility, that he only touched K.J. on her

              [shoulder] is indicative of his ability to appreciate that his actions were wrong.

              The evidence also reveals that Rodriguez had worked in a shop where his

              responsibilities included sweeping, putting on gloves, and gathering scrap metal

              and brake lining and putting them in a truck. Rodriguez was also responsible for

              his own personal hygiene, had the ability to clean, do laundry, pay bills, and

              received a high school degree from a school that specializes in teaching

              individuals with cognitive deficits.” Rodriguez, 2014 IL App (1st) 141255-U,

              ¶ 26.



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       In light of this evidence, we concluded that Rodriguez was capable of complying with the

       registration requirements, and we decline to find otherwise today.

¶ 28                                           CONCLUSION

¶ 29          For these reasons, we affirm the constitutionality of the SORA statutory scheme both on

       its face and as applied to Rodriguez.

¶ 30          Affirmed.




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