People v. Malchow

• Decision Date: 22 July 1999
• Docket Number: No. 2-98-0576.,2-98-0576.
• Citation: 239 Ill.Dec. 664,306 Ill. App.3d 665,714 N.E.2d 583
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl I. MALCHOW, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

714 N.E.2d 583

306 Ill. App.3d 665

239 Ill.Dec. 664

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl I. MALCHOW, Defendant-Appellant.

No. 2-98-0576.

Appellate Court of Illinois, Second District.

July 22, 1999.

Rehearing Denied August 24, 1999.

Robert P. Will, Jr., Robert P. Will, Jr. & Associates, Waukegan, for Carl Malchow.

Michael J. Waller, Lake County State's Attorney, Waukegan, Martin P. Moltz, Deputy Director, Richard S. London, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice RAPP delivered the opinion of the court:

Following a bench trial, defendant, Carl I. Malchow, was found guilty of failing to register as a sex offender as required by section 3(a)(2) of the Sex Offender Registration Act (730 ILCS 150/3(a)(2) (West Supp.1997)). Defendant was sentenced to 18 months' conditional discharge, ordered to comply with the Sex Offender Registration Act, and fined $500. On appeal, defendant challenges the constitutionality of the Sex Offender Registration Act (730 ILCS 150/2 et seq. (West Supp.1997)), arguing that it (1) violates the ex post facto clauses of the United States and Illinois Constitutions (U.S. Const., art. I, § 10, cl. 1; Ill. Const.1970, art. I, § 16); (2) violates federal and state constitutional prohibitions against cruel and unusual punishment (U.S. Const., amend. VIII; Ill. Const. 1970, art. I, § 11); (3) violates his right to privacy; (4) constitutes double jeopardy in violation of the United States and Illinois Constitutions (U.S. Const., amend. V; Ill. Const.1970, art. I, § 10); (5) violates his right to due process and equal protection; and (6) was passed in violation of the single-subject rule of the Illinois Constitution (Ill. Const.1970, art. IV, § 8(d)). We affirm defendant's conviction. However, we find defendant's sentence illegal and void and therefore reverse defendant's sentence and remand for sentencing only.

I. FACTS

On December 17, 1997, defendant was charged by indictment with unlawful failure to register as a sex offender between April 13, 1997, and December 4, 1997, as required by the Sex Offender Registration Act (the Registration Act) (730 ILCS 150/2 et seq. (West Supp.1997)). The registration requirement was based upon defendant's 1988 conviction of aggravated criminal sexual abuse against a person under the age of 18 (see Ill.Rev.Stat.1987, ch. 38, par. 12-16).

The trial court denied defendant's motion to declare the Registration Act unconstitutional and to dismiss the charges against him. Pursuant to a stipulated bench trial, the trial court found defendant guilty of failing to register as a sex offender. The trial court sentenced defendant to 18 months' conditional discharge, ordered him to comply with the Registration Act, and imposed a $500 fine. The trial court denied defendant's motion for a new trial. Defendant timely appealed.

II. HISTORY OF THE REGISTRATION ACT

In 1986, the Illinois legislature enacted the Habitual Child Sex Offender Registration Act (Ill.Rev.Stat.1987, ch. 38, pars. 221 through 230). The Habitual Child Sex Offender Registration Act required the registration of any person who, after July 1, 1986, was convicted of at least two sex crimes against a victim under the age of 18. Ill.Rev. Stat.1987, ch. 38, pars. 222(A), (B)(1), 223.

Effective January 1, 1993, the Habitual Child Sex Offender Registration Act was amended, and its title became the Child Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1994)). The Child Sex Offender Registration Act required the registration of all sex offenders who, after July 1, 1986, had been convicted of at least two sex crimes or any person who, after January 1, 1993, had been convicted of a first sex offense against a victim under the age of 18. 730 ILCS 150/2, 3 (West 1994).

Effective January 1, 1996, the Child Sex Offender Registration Act was amended, and its title became the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 1996)). The Sex Offender Registration Act applied to all sex offenders as defined by the statute. 730 ILCS 150/2 (West 1996). Additionally, the legislature enacted the Child Sex Offender and Murderer Community Notification Law (730 ILCS 152/101 et seq. (West 1996)), which became effective June 1, 1996.

Effective July 24, 1997, the legislature made further amendments to the Sex Offender Registration Act (730 ILCS 150/2 et seq. (West Supp.1997)). In addition, the Child Sex Offender and Murderer Community Notification Law was repealed, and the Sex Offender and Child Murderer Community Notification Law (730 ILCS 152/101 et seq. (West Supp.1997)) became effective.

III. EX POST FACTO ANALYSIS

Defendant first contends that the Registration Act violates the ex post facto clauses of United States Constitution (U.S. Const., art. I, § 10, cl. 1) and the Illinois Constitution of 1970 (Ill. Const.1970, art. I, § 16), with respect to the regulation and notification provisions and the enhanced penalty provision. This court recently rejected an ex post facto challenge to the Registration Act in People v. Logan, 302 Ill.App.3d 319, 235 Ill.Dec. 539, 705 N.E.2d 152 (1998). In Logan, we examined the same version of the Registration Act under which the defendant in this case was convicted, and we held that the "registration and notification provisions [of the Registration Act] do not violate the ex post facto clauses of the United States and Illinois Constitutions." Logan, 302 Ill. App.3d at 332,235 Ill.Dec. 539,705 N.E.2d 152.

In addition, we concluded in Logan that "the enhanced penalty provision of the Registration Act does not violate the United States or Illinois ex post facto clause." Logan, 302 Ill.App.3d at 332, 235 Ill.Dec. 539, 705 N.E.2d 152. In Logan, we recognized that section 10 of the Registration Act was amended, effective June 1, 1996, to provide that any person who violates the Registration Act is guilty of a Class 4 felony (see 730 ILCS 150/10 (West 1996)) and that prior to this amendment a violation of the Registration Act constituted a Class A misdemeanor (see 730 ILCS 150/10 (West 1994)). Logan, 302 Ill.App.3d at 332, 235 Ill.Dec. 539, 705 N.E.2d 152. In Logan, the indictment charged that the defendant committed the offense of failure to register as a sex offender after the effective date of the amendment to section 10 of the Registration Act. We therefore held that the enhanced penalty of the amendment did not violate the ex post facto clause in that case. Logan, 302 Ill. App.3d at 332, 235 Ill.Dec. 539, 705 N.E.2d 152.

In this case, the indictment against defendant alleged that he committed the offense of unlawful failure to register as a sex offender "between April 13, 1997 and December 4, 1997." As the amendment to section 10 of the Registration Act occurred prior to the date defendant committed this offense, we do not believe that the enhanced penalty of the amendment violates the ex post facto clause in this case.

IV. CRUEL AND UNUSUAL PUNISHMENT

Defendant next contends that the Registration Act violates federal and state constitutional prohibitions against cruel and unusual punishment (U.S. Const., amend. VIII; Ill. Const.1970, art. I, § 11). Defendant claims that the failure to register, which is punishable as a Class 4 felony (see 730 ILCS 150/10 (West 1996)), is disproportionate because it "is imposed upon a person who has been convicted of only a Class A misdemeanor."

We note that defendant was required to register as a sex offender based on his 1988 conviction of aggravated criminal sexual abuse against a person under the age of 18, a Class 2 felony. See Ill.Rev.Stat.1987, ch. 38, par. 12-16(e). A reviewing court will not determine the constitutionality of a provision of an act that does not affect the parties to the cause under consideration. People v. Rogers, 133 Ill.2d 1, 8, 139 Ill.Dec. 714, 549 N.E.2d 226 (1989). "A party may question the constitutional validity of a statutory provision only if he or she has sustained or is in immediate danger of sustaining some direct injury as a result of enforcement of the statute." Rogers, 133 Ill.2d at 8-9, 139 Ill.Dec. 714, 549 N.E.2d 226. Thus, a defendant may only contest a statutory provision as it is being applied to him. Rogers, 133 Ill.2d at 11, 13, 139 Ill.Dec. 714, 549 N.E.2d 226. Because defendant's registration requirement was not based on a Class A misdemeanor conviction, defendant lacks standing to complain of a statutory provision that was not applicable to him. See Rogers, 133 Ill.2d at 11, 139 Ill.Dec. 714, 549 N.E.2d 226.

Defendant also claims that the ridicule and humiliation that come with the public disclosure of registration information was not contemplated by him at the time of his conviction and not reasonably related or proportionate to the underlying offense. We may inquire into the constitutionality of a statute only to the extent required by the case before us. See Rogers, 133 Ill.2d at 8,139 Ill.Dec. 714,549 N.E.2d 226. Thus, we will examine defendant's eighth amendment claim of cruel and unusual punishment based on this claim alone.

To analyze the validity of a statute based upon an eighth amendment claim of cruel and unusual punishment, the purpose of the statute should be evaluated in order to determine whether it is penal in nature. People v. Adams, 144 Ill.2d 381, 387, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991), citing Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 595, 2 L.Ed.2d 630, 639 (1958). The severity of the disability as well as all the circumstances surrounding the legislative enactment may also be relevant factors in concluding whether a statute is penal. Adams, 144 Ill.2d at 387, 163 Ill.Dec. 483, 581 N.E.2d 637, citing Trop, 356 U.S. at 96, 78 S.Ct. at 595-96, 2 L.Ed.2d at 639-40.

In Adams, the supreme court rejected an eighth amendment argument with regard to the Habitual Child Sex Offender Registration Act (Ill.Rev.Stat.1987, ch. 38, pars. 221 through 230). Adams, 144 Ill.2d 381, 163 Ill.Dec. 483, ...