People v. Adams

• Decision Date: 05 June 1990
• Docket Number: No. 2-88-0857,2-88-0857
• Citation: 198 Ill.App.3d 74,144 Ill.Dec. 402,555 N.E.2d 761
• Parties: , 144 Ill.Dec. 402 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ADAMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 761

555 N.E.2d 761

198 Ill.App.3d 74, 144 Ill.Dec. 402

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel ADAMS, Defendant-Appellant.

No. 2-88-0857.

Appellate Court of Illinois Second District.

June 5, 1990.

G. Joseph Weller, Deputy Defender, and Thomas A. Lilien, Asst. Defender, argued, Office of State Appellate Defender, Elgin, for Daniel Adams.

James E. Ryan, DuPage County State's Atty., Wheaton, William L. Browers, Deputy Director, and Cynthia N. Schneider, argued, State's Attys. Appellate Prosecutor, Elgin, for the People.

Justice REINHARD delivered the opinion of the court:

Defendant, Daniel Adams, was indicted in the circuit court of Du Page County on one count of criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-13(a)(3)), and following defendant's plea of guilty, the court sentenced him to three years' imprisonment on December 2, 1987. On August 18, 1988, the trial court entered an order finding defendant to be a habitual child sex offender and certifying defendant to be such a habitual child sex offender pursuant to the Habitual Child Sex Offender Registration Act (Act) (Ill.Rev.Stat.1987, ch. 38, par. 221 et seq.).

Defendant raises the following issues on appeal: (1) whether the trial court lacked jurisdiction to enter the August 18, 1988, order certifying him as a habitual child sex offender; (2) whether the Act violates the eighth amendment to the United States Constitution; (3) whether the Act violates article I, section 11, of the Illinois Constitution; (4) whether the Act violates the equal protection clause of the Federal and State Constitutions; and (5) whether the Act violates the due process clause of the Federal and State Constitutions.

Defendant appeared before the court on December 2, 1987, to plead guilty to criminal sexual assault. Prior to accepting the plea agreement, the trial court inquired as to defendant's criminal history. The State told the court defendant was placed on probation July 31, 1985, for aggravated criminal sexual abuse against the same daughter who was the victim of the instant case. Defendant's counsel acknowledged that this was correct. The court then admonished defendant and listened to a factual basis for the plea that stated, among other things, that defendant's daughter would have testified that she was 12 years old when her father entered her bed, removed her clothing, and placed his penis into her anus.

Just after the court sentenced the defendant, the prosecutor informed the court that by statute the State was required to file a habitual child abuse offender form which required defendant's signature. The court ordered defendant to sign the form. This form is not contained in the record. There are no written findings indicating that the trial court determined defendant to be a habitual child sex offender or that the trial court certified defendant as such.

On May 3, 1988, the State filed a motion in the circuit court to have defendant certified pursuant to the Act. Defendant objected on grounds of equal protection and on the basis that the trial court was without jurisdiction because 30 days had passed since entry of judgment. The trial court found no violation of equal protection and ruled that it could certify defendant at this date because it was a ministerial function. The August 18, 1988, order states that defendant is found to be a habitual child sex offender and is so certified based upon findings made on December 2, 1987.

The Act, enacted in 1986, requires that anyone convicted of a second offense in Illinois of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, or aggravated criminal sexual abuse when the offense is a felony, against a victim under 18 years of age, shall be certified as a habitual child sex offender. (Ill.Rev.Stat.1987, ch. 38, par. 222.) A habitual child sex offender must register with the chief of police in the municipality he resides or moves to for up to 10 years after his conviction or the time he is released from prison or other confinement. (Ill.Rev.Stat.1987, ch. 38, par. 223, 227.) Registration consists of a statement in writing by the offender giving information required by the State Police which may include fingerprints and photographs. (Ill.Rev.Stat.1987, ch. 38, par. 228.) An offender must notify the law enforcement agency of any change of address within 10 days. (Ill.Rev.Stat.1987, ch. 38, par. 226.) Violation of the Act is a Class A misdemeanor. Ill.Rev.Stat.1987, ch. 38, par. 230.

We first address defendant's contention that the trial court lacked jurisdiction on August 18, 1988, to enter an order finding him to be a habitual child sex offender and certifying him as such because more than 30 days had passed since judgment was entered in the case. We begin by noting that defendant only raises a jurisdictional challenge to the timeliness of the entry of the order and does not raise any other basis for setting the order aside regarding the procedures used in determining he was a habitual child sex offender. As such, we will limit our review to the jurisdictional issue presented on appeal.

The State responds that the statute sets no time limit for the certification and, as the certification is a mandatory act, the certification may be entered at any time. The State also contends that, as the trial court retains jurisdiction over its records and retains the power to correct them, such residual jurisdiction pertains to the entry of mandatory findings, as here. As we agree that the trial court under the circumstances here retained jurisdiction to correct its record, we need not address the alternate basis suggested by the State.

When a defendant has been convicted, sentenced and placed into the custody of the Department of Corrections, the court rendering judgment and imposing sentence loses jurisdiction over the case and is without power to vacate, set aside or modify the judgment. (People v. Wakeland (1958), 15 Ill.2d 265, 269, 154 N.E.2d 245; see People v. Glenn (1962), 25 Ill.2d 82, 85, 182 N.E.2d 670.) Even though the trial court may lose jurisdiction of a case, it does not lose jurisdiction over its own records and may correct those records to reflect accurately the judgment that was in fact entered. Glenn, 25 Ill.2d at 85, 182 N.E.2d at 672.

In this case, the parties agreed at the sentencing hearing on December 2, 1987, that defendant had been convicted of criminal sexual abuse in 1985 in Stephenson County. Additionally, the assistant State's Attorney requested, and the court directed, defendant to sign a "Habitual Child Abuse Offender form." The written order evidencing judgment does not, however, contain any finding regarding defendant's status as a habitual child sex offender or any reference to a certification of such. On the other hand, the order of August 18, 1988, expressly finds defendant to be a habitual child sex offender and certifies him as such by referring to the court's findings of December 2, 1987.

Section 2(A) of the Act provides, in pertinent part, as follows:

"Upon such conviction the court shall certify that the person is a 'habitual child sex offender' and shall include the certification in the order of commitment." Ill.Rev.Stat.1987, ch. 38, par. 222(A).

While the procedure employed at the December 2, 1987, sentencing hearing should have included an express written finding of habitual child sex offender status and certification thereof by the trial court, the report of proceedings does indicate that the trial court was aware that defendant was a habitual child sex offender based on his prior conviction in 1985 and that some effort was made to comply with the Act, albeit less than ideal. Under these particular circumstances, any lack of such finding or certification in the written judgment must be viewed as an oversight or inaccuracy in the record. Thus, the trial court retained jurisdiction to correct the record to reflect accurately its determination on December 2, 1987, that defendant was a habitual child sex offender under the Act.

We next address defendant's contention that the Act's registration requirement constitutes cruel and unusual punishment. In this regard, defendant initially relies on Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644, in arguing that the registration requirement constitutes punishment thereby implicating the eighth amendment to the United States Constitution.

We believe defendant's reliance on Kennedy is misplaced. Kennedy sets forth the various factors for determining whether a disability constitutes punishment in the context of a fifth amendment due process analysis and did not reach the eighth amendment issue in that case. Kennedy, 372 U.S. at 159-86, 83 S.Ct. at 562-77, 9 L.Ed.2d at 655-71; see Ingraham v. Wright (1977), 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51 L.Ed.2d 711, 730 n. 40.

Moreover, in Ingraham v. Wright (1977), 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711, the Supreme Court noted that an eighth amendment analysis is appropriate in determining the constitutionality of an alleged punishment where the underlying conduct has already been established through formal criminal proceedings, whereas it is inappropriate to reach an eighth amendment analysis where the alleged punishment has been invoked absent a formal criminal process. (Ingraham, 430 U.S. at 671-72 n. 40, 97 S.Ct. at 1412-13 n. 40, 51 L.Ed.2d at 730 n. 40, comparing Trop v. Dulles (1958), 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630, with Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644.) The Court further pointed out that the State does not acquire the power to punish with which the eighth amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process. Ingraham, 430 U.S. at 671-72 n. 40, 97 S.Ct. at 1412-13 n. 40, 51 L.Ed.2d at 730 n. 40.

Where, as here, the alleged...