People v. Avila-Briones

• Decision Date: 24 December 2015
• Docket Number: No. 1–13–2221.,1–13–2221.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Osiris AVILA–BRIONES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

49 N.E.3d 428

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Osiris AVILA–BRIONES, Defendant–Appellant.

No. 1–13–2221.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 24, 2015.

49 N.E.3d 433

Michael J. Pelletier, Alan D. Goldberg, and Joshua M. Bernstein, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Annette Collins, and Mary L. Boland, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 In this appeal, defendant Osiris Avila–Briones, who was convicted of aggravated criminal sexual abuse for having sex with a 16–year–old girl when he was 23 years old, asks us to revisit the constitutionality of the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), the Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), and other statutes applicable to sex offenders (collectively, the “Statutory Scheme”). Defendant acknowledges that previous versions of these laws have been upheld but claims that the current versions of these laws are very different than the versions at issue in prior case law. He alleges that the Statutory Scheme has become so onerous that it has crossed the threshold from a civil regulatory scheme to a system of punishment. And, according to defendant, that system of punishment violates the constitutional prohibitions on cruel and unusual punishment, as well as his rights to procedural and substantive due process.

¶ 2 We need not revisit whether the Statutory Scheme constitutes punishment or not because, even assuming that it did, it would not violate the eighth amendment or proportionate penalties clause. A lifetime of restrictions similar to parole or probation is not a grossly disproportionate sentence for defendant's offense, and the Statutory Scheme serves legitimate penological goals. We also disagree with defendant's contention that the Statutory Scheme violates substantive due process. It does not affect fundamental rights enshrined in the substantive due process clause and is rationally related to the goal of protecting the public from the possibility that sex offenders will commit new crimes. Finally, we reject defendant's procedural due process claim because defendant is not entitled to additional procedures to evaluate his risk of reoffending where his risk of reoffending is irrelevant to his status as a sex offender under Illinois law.

¶ 3 I. BACKGROUND

¶ 4 As defendant does not challenge the sufficiency of the evidence against him or any of the trial proceedings, we will discuss the facts of the case only to the extent necessary to understand defendant's constitutional challenges.

¶ 5 In May 2011, defendant, who was 23 years old at the time, began to have a relationship with M.H., a 16–year–old girl. Between July 2011 and early November 2011, defendant and M.H. had vaginal intercourse between 10 and 20 times. On November 17, 2011, the police were called to M.H.'s family's house, where defendant and M.H. were fighting. M.H. went to the hospital, where she learned she was pregnant. Defendant was arrested, and a police officer testified that defendant admitted to having sex with M.H. after he learned that she was underage. At trial, defendant testified that he did not know M.H. was 16 and that he never told the

49 N.E.3d 434

police that he had sex with her despite knowing she was underage.

¶ 6 After a bench trial, defendant was convicted of 10 counts of aggravated criminal sexual abuse. The trial court sentenced him to six years' incarceration, the minimum sentence available in light of defendant's previous convictions for burglary and possession of a stolen motor vehicle. See 730 ILCS 5/5–4.5–95(b) (West 2012) (requiring Class X sentencing range for offender convicted of three Class 2 or greater offenses). Defendant appeals.

¶ 7 II. ANALYSIS

¶ 8 A. The Statutory Provisions at Issue

¶ 9 For clarity's sake, before turning to the parties' arguments, we will set out the various statutes that make up the Statutory Scheme. We have divided these statutes into three categories: (1) registration and notification requirements; (2) residency, employment, and presence restrictions; and (3) other provisions.

¶ 10 1. Registration and Notification Requirements

¶ 11 Defendant's conviction for aggravated criminal sexual abuse qualifies him as a “sexual predator” under SORA. 730 ILCS 150/2(E)(1) (West 2012). As a sexual predator, defendant has a duty to register in person with the law enforcement agency in the municipality or county where he resides within three days of his release from prison. 730 ILCS 150/3(a), (c)(4) (West 2012). He will also have to register with the law enforcement agency in any municipality or county where he is temporarily domiciled for at least three days, and must provide that agency with his travel itinerary while there. 730 ILCS 150/3(a) (West 2012). If defendant works for or attends an institution of higher learning, he will have to register with, not only the police department in the jurisdiction where the school is located, but also “the public safety or security director of the institution of higher education.” 730 ILCS 150/3(a)(2)(i), (ii) (West 2012).

¶ 12 Each time he registers, he must provide the authorities with a host of information about himself, including:

“[A] current photograph, current address, current place of employment, [his] telephone number, including cellular telephone number, [his] employer's telephone number, school attended, all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other Internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information, extensions of the time period for registering as provided in this Article and, if an extension was granted, the reason why the extension was granted and the date the sex offender was notified of the extension. The information shall also include a copy of the terms and conditions of parole or release signed by the sex offender and given to the sex offender by his or her supervising officer [or aftercare specialist], the county of conviction, license plate numbers for every vehicle registered in the name of the sex offender, the age of the sex offender at the time of the commission of the offense, the age of the victim at the time of the commission of the offense, and any distinguishing marks located on the body of the sex offender.” 730 ILCS 150/3(a) (West 2012).

He must provide proof of his address via “positive identification and documentation.” 730 ILCS 150/3(c)(5) (West 2012). He will also have to pay a $100 fee every

49 N.E.3d 435

time he registers. 730 ILCS 150/3(c)(6) (West 2012).

¶ 13 Defendant will be required to re-register annually. 730 ILCS 150/6 (West 2012). But the law enforcement agency with which defendant is registered may require him to appear, on request, up to four more times per year. Id. If defendant lacks a fixed residence, he will be required to register on a weekly basis. Id. If any of the information that defendant previously provided changes, he will have to notify the last law enforcement agency he registered with, in person, within three days. 730 ILCS 150/3, 6 (West 2012).

¶ 14 Defendant will be required to comply with these provisions for the rest of his life. 730 ILCS 150/7 (West 2012). If defendant fails to comply with any of these requirements, he may be convicted of a Class 3 felony (730 ILCS 150/10(a) (West 2012)), carrying a sentence of up to five years' incarceration. 730 ILCS 5/5–4.5–40(a) (West 2012). Any subsequent failures to register are Class 2 felonies (730 ILCS 150/10(a) (West 2012)), which ordinarily have a sentencing range of 7 to 14 years' incarceration (730 ILCS 5/5–4.5–35(a) (West 2012)), but, because of defendant's prior convictions, will have a sentencing range of 6 to 30 years' incarceration. 730 ILCS 5/5–4.5–95(b) (West 2012). He will be required to pay a mandatory minimum $500 fine for each failure to register. 730 ILCS 150/10(a) (West 2012).

¶ 15 The Notification Law works in tandem with SORA. Under the Notification Law, law enforcement authorities must disclose sex offenders' names, addresses, dates of birth, places of employment, schools, email addresses, instant messaging identities, chat room identities, and “other Internet communications identities” to the following persons and entities in the county: institutions of higher education, public school boards, child care facilities, libraries, public housing agencies, the Illinois Department of Children and Family Services, social service agencies providing services to minors, volunteer organizations providing services to minors, and any victims of any sex offenses (not just the victim of the sex offense for which the sex offender has been convicted). 730 ILCS 152/120(a), (a–2), (a–3) (West 2012). The police must also inform these people...