People ex rel. Birkett v. Konetski

• Decision Date: 21 May 2009
• Docket Number: No. 102667.,102667.
• Citation: 233 Ill.2d 185,909 N.E.2d 783
• Parties: The PEOPLE of the State of Illinois ex rel. Joseph E. BIRKETT, Petitioner, v. Honorable James J. KONETSKI et al., Respondents.
• Court: Illinois Supreme Court

909 N.E.2d 783

233 Ill.2d 185

The PEOPLE of the State of Illinois ex rel. Joseph E. BIRKETT, Petitioner, v. Honorable James J. KONETSKI et al., Respondents.

No. 102667.

Supreme Court of Illinois.

May 21, 2009.

Joseph E. Birkett, State's Attorney, Wheaton (Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Norbert J. Goetten, Martin P. Moltz and Cynthia N. Schneider, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for petitioner.

Thomas A. Lilien, Deputy Defender, Kathleen Weck, Assistant Defender, Office of the State Appellate Defender, Elgin, for respondent Jared P.

Lisa Madigan, Attorney General, Springfield (Gary Feinerman, Solicitor General, Michael M. Glick and David H. Iskowich, Assistant Attorneys General, Chicago, of counsel), for amicus curiae the People of the State of Illinois.

Irene F. Bahr and Mary T. McDermott, Springfield (Stephen W. Baker, Assistant Public Defender, Office of the Cook County Public Defender, Chicago, of counsel), for amicus curiae Illinois State Bar Association.

OPINION

Justice KILBRIDE delivered the judgment of the court, with opinion.

We allowed the State's motion for leave to file an original mandamus action in this court under Supreme Court Rule 381(a) (188 Ill.2d R. 381(a)). The State seeks an order compelling the respondent, the Honorable James J. Konetski, to vacate his order exempting the minor, Jared P., from the registration requirement of the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq. (West 2004)), and to advise the minor of his duty to register under the Act. For the following reasons, we award the order of mandamus.

I. BACKGROUND

The minor, Jared P., was charged in a delinquency petition with committing several offenses. Following a bench trial, the circuit court of Du Page County adjudicated him delinquent for committing the offenses of criminal sexual assault and criminal sexual abuse (720 ILCS 5/12-13(a)(1), 12-15(a)(1) (West 2004)).

At the sentencing hearing, the minor argued he should not be required to register under the Act because he was not entitled to a jury trial on the charges subjecting him to an adult sentencing scheme, including the duty to register. The minor contended that juveniles exposed to an adult sentencing scheme are entitled to the full range of due process, and requiring him to register under the Act without the right to a jury trial would be unconstitutional. The minor asked for a sentence of probation until he reached the age of 21, with the adjudication subject to a motion to vacate. According to the minor, under that disposition "a final and appealable order will not have been entered." At the end of the period of probation, a motion to vacate could be granted, thus allowing him an opportunity to avoid the registration requirement.

The State responded that there was no basis for finding the registration requirement unconstitutional. The State also objected to the minor's sentencing request, arguing it would result in an unauthorized disposition of court supervision for these offenses.

The respondent stated the minor would be placed on probation until the age of 21, but took under advisement the issues of whether the minor would be ordered to register under the Act and whether the adjudication would be subject to a motion to vacate. The respondent stated "[i]f there's a way I can avoid having you register, I'm going to do that."

At a subsequent hearing, the respondent entered an order placing the minor on probation until he reached the age of 21 with several conditions. The respondent informed the minor that he would not be required to register under the Act as a condition of his probation. In declining to require registration, the respondent noted the minor was not afforded the right to a jury trial in this juvenile delinquency proceeding. The respondent stated there were enough similarities between this juvenile proceeding and an adult criminal proceeding that "I think not being afforded the right to a trial by jury as an adult would be for a similar charge is perhaps violative of both substantive due process as well as equal protection provisions of the 14th Amendment."

The respondent acknowledged this court's case law holding registration under the Act is not a punishment but found, nonetheless, that requiring a person to register is sufficiently serious that a minor should be afforded the right to a jury trial. The respondent further stated it is not appropriate to require registration without providing a juvenile the right to a jury trial. The respondent, therefore, declined to require the minor to register under the Act as a condition of his probation.

In a form sentencing order, the respondent checked two separate boxes indicating he was ordering probation rather than conditional discharge or supervision. He wrote that the minor's probation was "subject to a motion to vacate at the end of the term." The respondent explained that if the minor followed the conditions of his probation, at the end of the term he could "ask that essentially the entire matter—if it's vacated, it's like it never happened."

The respondent also entered a separate written order stating the "court finds sexual offender registration is a penalty and as such the minor should have had a right to a jury trial." Based on that finding, the respondent ruled the minor was not required to register as a sex offender. The respondent, therefore, did not advise the minor of his duty to register as required by section 5 of the Act (730 ILCS 150/5 (West 2004)). Additionally, the respondent did not advise the minor of his right to appeal in accordance with Supreme Court Rule 605(a) (188 Ill.2d R. 605(a)).

The State filed a motion to reconsider the ruling that the minor was not required to register as a sex offender. The State requested an order requiring the minor to register under the Act asserting, among other things, that the Illinois appellate court had held requiring a minor to register as a sex offender did not violate either substantive or procedural due process. Following the motion hearing, the respondent stated he did not "quarrel with a great deal of what you say," and he was not offering an opinion about the registration requirement in his prior ruling. Rather, the sole and narrow basis for the ruling was his opinion that "a minor should be allowed to not only have a jury trial but remain within the juvenile system and should not give up all the benefits that the juvenile system affords the minor by electing to proceed with a jury trial." Accordingly, the respondent denied the State's motion to reconsider.

The State later moved this court for leave to file an original mandamus complaint or for issuance of a supervisory order. This court denied the State's request for a supervisory order, but allowed the State to file its mandamus complaint. In its complaint, the State sought to compel the respondent to vacate his order exempting the minor from the registration requirement and to advise the minor of his duty to register as a sex offender in accordance with the Act. We ordered the parties to brief the issues. We also allowed the Attorney General of the State of Illinois and the Illinois State Bar Association to file amicus curiae briefs. 210 Ill.2d R. 345.

While the State's mandamus action was pending, the minor filed a motion for a supervisory order asserting the trial court failed to admonish him of his right to appeal in accordance with Supreme Court Rule 605(a). The minor sought an order allowing him to file a late notice of appeal or an order remanding the matter to the trial court for admonishments under Rule 605(a). We entered a supervisory order directing the trial court to admonish the minor in accordance with Rule 605(a) and to allow him to file a late notice of appeal within 30 days of the admonishment. The minor subsequently filed a notice of appeal.

We then entered an order holding this mandamus action pending resolution of the minor's appeal to prevent granting mandamus relief prematurely and to avoid unnecessarily addressing constitutional claims raised by the minor in opposition to the mandamus complaint. On appeal, the minor argued the evidence was insufficient to prove him guilty of the offenses beyond a reasonable doubt, the trial court erred in admitting improper hearsay testimony, and his adjudication of criminal sexual abuse must be vacated under the one-act, one-crime rule. In re Jared P., No. 2-07-0259, 229 Ill.2d 667, 326 Ill.Dec. 871, 900 N.E.2d 1118 (2008) (unpublished order under Supreme Court Rule 23). The appellate court held the evidence was sufficient to find the minor guilty beyond a reasonable doubt and the disputed testimony was not hearsay because it was not offered to prove the truth of the matter asserted. The appellate court agreed with the minor that his criminal sexual abuse adjudication must be vacated. Accordingly, the appellate court affirmed the trial court's judgment, but modified the dispositional order to reflect an adjudication of a single count of criminal sexual assault. In re Jared P., No. 2-07-0259, 229 Ill.2d 667, 326 Ill.Dec. 871, 900 N.E.2d 1118 (2008) (unpublished order under Supreme Court Rule 23).

The minor filed a petition for leave to appeal the appellate court's decision. In re Jared P., No. 107310, 229 Ill.2d 667, 326 Ill.Dec. 871, 900 N.E.2d 1118 (2008). We denied the petition for leave to appeal on November 26, 2008. In re Jared P., 229 Ill.2d 667, 326 Ill.Dec. 871, 900 N.E.2d 1118 (2008) (table).

We also note that the legislature substantially amended the Act while the minor's appeal was pending. See Pub. Act 95-658, § 5, eff. October 11, 2007. Given the clear application of those amendments to this mandamus action, we directed the parties to submit supplemental briefs on the retroactivity of the changes and their impact on the issues. We have now received the parties' supplemental briefs and may consider the State's mand...