People v. Bingham

• Decision Date: 10 February 2017
• Docket Number: No. 1-14-3150,1-14-3150
• Citation: 73 N.E.3d 39,2017 IL App (1st) 143150
• Parties: The People of the STATE of Illinois, Plaintiff-Appellee, v. Jerome BINGHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 143150
73 N.E.3d 39

The People of the STATE of Illinois, Plaintiff-Appellee,
v.
Jerome BINGHAM, Defendant-Appellant.

No. 1-14-3150

Appellate Court of Illinois, First District, SIXTH DIVISION.

February 10, 2017

Michael J. Pelletier and Deborah Nall, of State Appellate Defender's Office, of Chicago, for appellant.

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

OPINION

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

¶ 1 Following a bench trial in September 2014, the trial court convicted defendant, Jerome Bingham, of theft, which was elevated to a Class 4 felony due to a previous retail theft conviction, and sentenced him to three years' imprisonment. Defendant had a prior conviction in 1983 for attempted criminal sexual assault for which he had not been required to register as a sex offender because the conviction occurred prior to enactment of the Sex Offender Registration Act (Act) (730 ILCS 150/1 et seq . (West 2012)), in 1986. Under section 3(c)(2.1) of the Act (730 ILCS 150/3(c)(2.1) (West 2012)), as amended in 2011, defendant's 2014 felony theft conviction in this case required him to register as a sex offender for the 1983 attempted criminal sexual assault. On appeal, defendant contends (1) the Act is unconstitutional as applied to him; (2) the Act violates the ex post facto clauses of the United States and Illinois Constitutions; (3) his theft conviction was improperly elevated from a Class A misdemeanor to a Class 4 felony, and the trial court improperly imposed an enhanced three-year sentence for the Class 4 felony conviction; and (4) the trial court erroneously imposed a DNA analysis fee and failed to apply the $5 per day credit for presentence incarceration to several charges that qualify as fines. We affirm defendant's conviction, three-year sentence, and the requirement that he register as a sex offender. We vacate his DNA analysis fee, credit him with $65 as against his fines, and direct the clerk of the circuit court to modify the fines and fees order accordingly.

¶ 2 I. Defendant's Theft Conviction

Defendant was charged with theft after a surveillance camera recorded him taking several pallets from the unfenced yard of a Kmart 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

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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 under case number 00125524901, in violation of Chapter 720 Act 5 section 16-1(a)(1) of the Illinois Compiled Statutes 1992 as amended."

¶ 3 The cause proceeded to a one-day trial on September 11, 2014. At trial, Ali Sahtout testified he works as a security guard at the Kmart at 4201 North Harlem Avenue in Norridge. At approximately 6:30 p.m. on May 3, 2014, Mr. Sahtout was in the Kmart security office monitoring the video cameras when he saw defendant drive his truck to the receiving area in the back of the store, where storage units and pallets belonging to Kmart are located. Defendant exited his truck, grabbed a total of six pallets (two pallets at a time), and put them on the back of his truck. Then he drove away. The pallets were valued at $12 each. Defendant was never given permission to take the pallets.

¶ 4 Mr. Sahtout contacted the Norridge police department. About five minutes later, the police called him back and asked him to come to a location a half block from the receiving area of the store. Mr. Sahtout went there and saw that the officers had pulled defendant over and placed him in a squad car.

¶ 5 Mr. Sahtout identified People's exhibit No. 1 as the video depicting defendant taking the pallets and putting them in the back of his truck. Mr. Sahtout identified People's exhibits Nos. 2 through 5 as photographs truly depicting how defendant's truck appeared on May 3, 2014.

¶ 6 Officer Peter Giannakopoulos of the Norridge police department testified that at approximately 6:30 p.m. on May 3, 2014, he was patrolling the 4200 block of Harlem Avenue. He was dispatched to the Kmart store a half block away because there was a report that an African-American man in a black pickup truck with registration plate 1129940 B had taken some pallets from the rear of the property.

¶ 7 Officer Giannakopoulos arrived at the Kmart receiving area about two minutes later, and he saw a black pickup truck with registration plate 1129940 B leaving the area. Defendant was the driver. The officer curbed the truck and saw several pallets on the truck's open bed.

¶ 8 Officer Giannakopoulos asked Mr. Sahtout to come to his location to make an identification. Mr. Sahtout came and identified defendant as the person who had taken the pallets from the rear of the Kmart. Defendant was placed under arrest.

¶ 9 Following the testimony of Officer Giannakopoulos, the parties stipulated that defendant had a previous conviction for retail theft in case No. 00125524901. The State entered its exhibits into evidence, and the trial court viewed the video depicting defendant taking the pallets from the Kmart receiving area. The State then rested.

¶ 10 Defendant testified he was a retired truck driver, who now works as a metal scrapper, and 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. Pursuant to this conversation with the forklift driver, defendant took several broken pallets from the Kmart receiving area on May 3 and was subsequently pulled over by the police. Defendant testified he believed he had permission from the forklift driver to take

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the broken pallets, and therefore he did not believe he was guilty of theft.

¶ 11 On September 11, 2014, following defendant's testimony, the trial court convicted defendant of theft. The cause proceeded to sentencing. The presentence investigation report (PSI) detailed defendant's prior criminal history, including 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. At sentencing, the State presented evidence that on May 2, 2014 (the day before the theft of which he was convicted here), defendant had stolen additional pallets from the Kmart located at 4201 North Harlem Avenue.

¶ 12 The trial court sentenced defendant to three years' imprisonment on his theft conviction, which was elevated to a Class 4 felony due to his previous conviction for retail theft, plus $699 in various fines, fees, and costs.

¶ 13 II. Defendant's Sex Offender Registration

¶ 14 The PSI indicated that defendant was convicted of attempted criminal sexual assault in 1983 and sentenced to four years' imprisonment. At the time of defendant's offense in 1983, he was not required to register as a sex offender because the Act had not yet been enacted. The Act was subsequently enacted in 1986 and 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). Defendant's 2014 felony conviction for theft now requires him to register as a sex offender for his commission of attempted criminal sexual assault in 1983.

¶ 15 III. Defendant's Appeal

¶ 16 First, defendant contends the Act is unconstitutional as applied to him. Specifically, defendant contends his history of nonviolent and nonsexual offenses (since his 1983 conviction for attempted criminal sexual assault) and the circumstances of the 2014 felony theft of six pallets from the Kmart do not indicate he is at risk of committing another sex offense. Therefore, defendant argues the Act violates his substantive due process rights by requiring him to register as a sex offender because on these facts there is no reasonable relationship between the registration requirement and the Act's purpose of protecting the public from sex offenders.

¶ 17 A statute is presumed constitutional, and defendant, as the party challenging the statute, bears the burden of demonstrating its invalidity. People v. Malchow , 193 Ill.2d 413, 418, 250 Ill.Dec. 670, 739 N.E.2d 433 (2000). Courts have the duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of its validity. People v. Patterson , 2014 IL 115102, ¶ 90, 388 Ill.Dec. 834, 25 N.E.3d 526. We review de novo the constitutionality of a statute. Id .

¶ 18 "When confronted with a claim that a statute violates the due process guarantees of the United States and Illinois Constitutions, courts first must determine the nature of the right purportedly infringed upon by the statute. [Citation.] Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test. [Citation.] To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature

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sought to accomplish in enacting the statute. [Citation.] Pursuant to this test, a statute will be upheld if it bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective."...