People v. Bingham

• Decision Date: 20 September 2018
• Docket Number: Docket No. 122008
• Citation: 2018 IL 122008,115 N.E.3d 166,425 Ill.Dec. 611
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Jerome BINGHAM, Appellant.
• Court: Illinois Supreme Court

2018 IL 122008

115 N.E.3d 166

425 Ill.Dec. 611

The PEOPLE of the State of Illinois, Appellee,

v.Jerome BINGHAM, Appellant.

Docket No. 122008

Supreme Court of Illinois.

Opinion filed September 20, 2018.

Rehearing denied November 26, 2018

James E. Chadd, State Appellate Defender, Patricia Mysza, Deputy Defender, and Deborah Nall, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Eric M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.

Mayer Brown LLP (Michael A. Scodro, of Chicago, Andrew L. Frey, of New York, New York, and Craig W. Canetti, of Washington, D.C., of counsel), for amicus curiae Collateral Consequences Resource Center.

Adele D. Nicholas and Mark G. Weinberg, both of Chicago, for amicus curiae Illinois Voices for Reform.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 Following a September 2014 bench trial in the circuit court of Cook County, defendant Jerome Bingham was convicted of felony theft ( 720 ILCS 5/16-1(a)(2)(A), (b)(2) (West 2012) ) and sentenced to three years in prison. Defendant had a prior conviction for attempted criminal sexual assault that occurred in 1983, but he was not required to register as a sex offender at that time because the conviction occurred prior to the 1986 enactment of the Sex Offender Registration Act (Act) ( 730 ILCS 150/1 et seq. (West 2012) ). Under section 3(c)(2.1) of the Act as amended in 2011 (id. § 3(c)(2.1) ), however, defendant's 2014 felony theft conviction triggered a requirement that he register as a sex offender on account of his 1983 conviction for attempted criminal sexual assault. Sex offender registration is a matter controlled by statute and was not a requirement imposed by the trial court in this case, and it is thus not reflected in the trial court's judgment.

¶ 2 On appeal to the appellate court, defendant argued that the Act's registration requirement was unconstitutional as applied to him on due process grounds and that it violated the ex post facto clauses of the United States and Illinois Constitutions. The appellate court addressed the merits of defendant's claims and rejected them, thereby upholding the constitutionality of the Act. The appellate court also modified or vacated various fines and fees imposed by the trial court.

¶ 3 Defendant petitioned for leave to appeal to this court, which we allowed. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). For the reasons that follow, we vacate the portion of the appellate court's judgment that addressed, on the merits, the constitutionality of the Act's registration requirement, and we dismiss defendant's appeal before this court.

¶ 4 BACKGROUND

¶ 5 Defendant was charged with felony theft after a surveillance camera recorded him taking several pallets from the unfenced yard of a Kmart at 4201 Harlem Avenue in Norridge, Illinois, at approximately 6:30 p.m. on May 3, 2014. The indictment alleged that defendant committed theft

"in that he knowingly obtained or exerted unauthorized control over property, to wit: pallets, of a value less than five hundred dollars, the property of Kmart, intending to deprive Kmart, permanently of the use or benefit of said property, and the defendant has been previously convicted of the offense [of] retail theft [ ( 720 ILCS 5/16-1(a)(1) (West 1992) ) ]."

Although theft is generally a Class A misdemeanor, the offense in this case was elevated to a Class 4 felony because defendant had previously been convicted of another theft offense. See 720 ILCS 5/16-1(b)(2) (West 2012).

¶ 6 At trial, the State presented testimony from various witnesses establishing that on May 3, 2014, defendant took from the Norridge Kmart a total of six pallets, valued at $72, and drove away in his truck without paying or receiving permission to take them. The parties stipulated that defendant had a previous conviction for retail theft in case No. 00125524901. The State entered various exhibits into evidence, and the trial court viewed a video depicting defendant taking the pallets from the Kmart receiving area.

¶ 7 Defendant testified that, about six months before the incident at issue, he had a conversation with a person who was driving a forklift in the back of the Kmart at 4201 North Harlem Avenue. The forklift driver told defendant that it would be okay for him to take broken pallets from behind the Kmart for scrapping purposes.

¶ 8 The trial court found defendant guilty of theft, and the cause proceeded to sentencing. The presentence investigation report showed that defendant had an extensive criminal history, which included convictions for the following offenses: attempted criminal sexual assault in 1983, possession of a controlled substance in 1993 and 1996, violation of an order of protection in 1999, retail theft of less than $150 in 1999, possession of a stolen vehicle in 2000, two retail thefts in 2000, theft in 2004, and possession of a controlled substance in 2005 and 2007. The State also presented evidence at sentencing that on May 2, 2014, the day before the theft that defendant was found guilty of in this case, defendant also stole pallets from the Kmart located at 4201 North Harlem Avenue.

¶ 9 The trial court sentenced defendant to three years' imprisonment on his theft conviction—which became a Class 4 felony due to his previous conviction for retail theft—and assessed $699 in various fines, fees, and costs. The trial court did not impose as part of its judgment a requirement that defendant register as a sex offender.

¶ 10 Defendant's theft conviction, however, did trigger the collateral consequence¹ of his having to register as a sex offender under the Act. The presentence investigation report indicated that defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to serve four years in prison. At the time of his conviction in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. It was enacted in 1986 and then amended in 2011 to provide that "[a] sex offender or sexual predator, who has never previously been required to register under this Act, has a duty to register if the person has been convicted of any felony offense after July 1, 2011." 730 ILCS 150/3(c)(2.1) (West 2012). Thus, defendant's 2014 felony theft conviction now requires him to register with the appropriate law enforcement agency as a sex offender for his commission of attempted criminal sexual assault in 1983.

¶ 11 On appeal to the appellate court, defendant first argued that the registration requirement of the Act violated his substantive due process rights as applied because under the particular facts of this case, where such a long time had passed since defendant's sex offense, there was no reasonable relationship between the Act's requirement to register and its purpose of protecting the public from sex offenders. 2017 IL App (1st) 143150, ¶ 23, 411 Ill.Dec. 325, 73 N.E.3d 39. The appellate court rejected that argument. It found that the legislature could have reasonably determined that where a defendant commits a sex offense in the past for which he was not required to register and has shown a recent, general tendency to recidivate by committing a new felony offense since the amendment of the Act in 2011, he poses a potential threat of committing a new sex offense in the future. Id. ¶ 24 Moreover, the appellate court noted, "[s]uch a threat is magnified in the instant case, where defendant has committed no less than 11 crimes (6 felonies and 5 misdemeanors), in addition to the 2014 felony theft at issue here, since his attempted criminal sexual assault in 1983." Id. The appellate court concluded that the Act's requirement that defendant register as a sex offender for committing the 2014 felony theft after having committed the 1983 attempted criminal sexual assault is a reasonable method for accomplishing the desired legislative objective of protecting the public from sex offenders, and therefore it found the Act as applied to defendant satisfies the rational basis test and is constitutional. Id.

¶ 12 Defendant next argued that the registration requirement of the Act is a new and ongoing punishment for the attempted criminal sexual assault offense he committed in 1983 and therefore violates the ex post facto clauses of the United States and Illinois Constitutions. Id. ¶ 25. The appellate court rejected this argument as well. Citing People ex rel. Birkett v. Konetski , 233 Ill.2d 185, 207, 330 Ill.Dec. 761, 909 N.E.2d 783 (2009), In re J.W. , 204 Ill.2d 50, 75, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003), People v. Malchow , 193 Ill.2d 413, 424, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000), People v. Adams , 144 Ill.2d 381, 386-90, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991), and People v. Fredericks , 2014 IL App (1st) 122122, ¶¶ 58-61, 383 Ill.Dec. 293, 14 N.E.3d 576, it concluded that the requirement of sex offender registration does not amount to punishment and there was therefore no violation of the ex post facto clauses. 2017 IL App (1st) 143150, ¶¶ 27, 30, 411 Ill.Dec. 325, 73 N.E.3d 39.

¶ 13 ANALYSIS

¶ 14 Before this court, defendant argues that the registration requirement of the Act is unconstitutional as applied to him on substantive due process grounds and violates ex post facto principles.

¶ 15 In response, the State first raises a threshold jurisdictional argument. It contends that a reviewing court has no power on direct appeal of a criminal conviction to order that a defendant be relieved of his obligation to register as a sex offender when that obligation was neither imposed by the trial court nor did it in any way relate to the reasons for his conviction and sentence in that court. We agree with the State.

¶ 16 In criminal cases, "[a] notice of appeal confers jurisdiction on an appellate court to consider only the judgments or parts of judgments...