People v. Marsh

• Decision Date: 29 March 2002
• Docket Number: No. 1-00-1646.,1-00-1646.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cayetano MARSH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

768 N.E.2d 108

329 Ill. App.3d 639

263 Ill.Dec. 348

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cayetano MARSH, Defendant-Appellant.

No. 1-00-1646.

Appellate Court of Illinois, First District, Second Division.

March 29, 2002.

Rita A. Fry, Public Defender of Cook County (Robert D. Swartz, Assistant Public Defender, of counsel), Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County (Renee Goldfarb, Kenneth T. McCurry, Katherine Blakey Cox, Assistant State's Attorneys, of counsel), Chicago, for Appellee.

Presiding Justice BURKE delivered the opinion of the court:

Defendant Cayetano Marsh appeals from an order of the circuit court entering judgment upon a jury's verdict finding him guilty of failing to report a change of his address in compliance with the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West Supp.2000)) and sentencing him to four years' imprisonment. On appeal, defendant contends that the penalty provision of the Act violates substantive due process, double jeopardy, and the proportionate penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11). Defendant also contends that the trial court abused its discretion in sentencing him to four years' imprisonment. For the reasons set forth below, we affirm, but modify defendant's sentence.

STATEMENT OF FACTS

On February 11, 1987, defendant pled guilty to aggravated criminal sexual assault and was sentenced to nine years' imprisonment. Defendant was released in November 1990.¹ On November 14, 1996, defendant pled guilty to the offense of burglary. He was paroled on December 5, 1997, and, at this time, he was notified of his obligation to register as a sex offender pursuant to the Act. Thereafter, on December 9, 1997, defendant registered his address as 1759 North Humboldt in Chicago. Defendant was subsequently imprisoned in August 1998 for a parole violation and released on May 14, 1999. Following this discharge from custody, defendant failed to report a change of his residence with the local authorities. At this time, because his mother had been evicted from the apartment at 1759 North Humboldt, defendant began staying with a friend at 1758 North Humboldt.

On August 28, 1999, defendant was arrested in an unrelated matter and the police discovered that he was an unregistered sex offender. An indictment was subsequently returned, charging defendant with the offense of failing to report a change of his address in compliance with the Act. On April 4, 2000, following a trial, the jury returned a verdict, finding defendant guilty of failing to change his address pursuant to the Act. Thereafter, the trial court conducted a sentencing hearing, in which it heard evidence in aggravation and mitigation. The State sought an extended-term sentence based on defendant's prior burglary conviction, his background, and the threat he posed to society. Defendant presented evidence in mitigation, arguing that the burglary conviction was insufficient to support an extended-term sentence, that he only moved across the street, not next door to children, and the fact he had not worked was due to a disability—he had only one leg. Defendant spoke on his own behalf, stating that he merely forgot to report a change of address and the place he was staying at was temporary. It was his belief that he had been trying to live a clean life and follow the law since his release.

In fashioning defendant's sentence, the court first noted that defendant had a criminal history that ranged over one-half of his life, including three felonies. The court further noted that this was defendant's fourth felony. Because of the burglary conviction, defendant was eligible for an extended-term sentence. With respect to defendant's ability to work, the court stated that the economy was such that people were begging other people to work and one need not be able-bodied to find employment. Additionally, the court found that defendant was a "very intelligent person" who had gone to a "magnet" school, had earned his GED, and had 32 hours of college credit. However, it was the court's belief that defendant had lost an interest in complying with the law, just as he had lost interest in school. The trial court then sentenced defendant to an extended term of four years' imprisonment. This appeal followed.

ANALYSIS

Pursuant to section 3(b) of the Act, within 10 days of establishing a residence for more than 10 days, a sex offender is required to register pursuant to the provisions of the Act set forth in paragraph (a) of section 3. 730 ILCS 150/3(b) (West Supp.2000). Under section 6, if one has a duty to register under the Act and he changes his residence, he is required to inform the law enforcement agency with whom he is registered, within 10 days, of his new address. 730 ILCS 150/6 (West 1998). An offender is required to register for 10 years following release from confinement. 730 ILCS 150/7 (West 1998). The penalty for violating the Act is a Class 4 felony, carrying a sentence of one to three years. 730 ILCS 150/10 (West 1998). Under section 10, the trial court is required, at a minimum, to sentence a defendant convicted under the Act to seven days in jail and fine him $500.

I. Constitutionality of Act

Defendant contends that the penalty provision of the Act is unconstitutional because it violates due process, double jeopardy, and the proportionate penalties clause of the Illinois Constitution (Ill. Const.1970, art. I, § 11).

"Statutes are presumed constitutional, and a party challenging the constitutionality of a statute has the burden of establishing its invalidity." People v. Wright, 194 Ill.2d 1, 24, 251 Ill.Dec. 469, 740 N.E.2d 755 (2000). Because the legislature is "`more aware of the evils confronting our society and therefore is more capable of measuring the seriousness of various offenses,' [citation] * * * courts are reluctant to invalidate penalties established by the legislature." People v. Lombardi, 184 Ill.2d 462, 469, 235 Ill.Dec. 478, 705 N.E.2d 91 (1998). Therefore, it is this court's duty to construe a statute so as to affirm its "constitutionality and validity, if reasonably possible." People v. Shephard, 152 Ill.2d 489, 498, 178 Ill.Dec. 724, 605 N.E.2d 518 (1992).

While several cases have addressed the constitutionality of the Act,² under various theories, and have upheld its constitutionality, these cases address the registration and notification provisions of the Act, not the penalty provision. Nonetheless, challenges have been upheld based upon cruel and unusual punishment under the eighth amendment (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, 387-88, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991) (former version of act); People v. Guillen, 307 Ill.App.3d 35, 38, 240 Ill.Dec. 470, 717 N.E.2d 563 (1999); People v. Malchow, 306 Ill.App.3d 665, 670-71, 239 Ill. Dec. 664, 714 N.E.2d 583 (1999); People v. Adams, 198 Ill.App.3d 74, 80, 144 Ill.Dec. 402, 555 N.E.2d 761 (1990) (former version of act)), disproportionate penalty under the eighth amendment (Adams, 144 Ill.2d at 389,163 Ill.Dec. 483,581 N.E.2d 637; Adams, 198 Ill.App.3d at 83,144 Ill.Dec. 402,555 N.E.2d 761), equal protection (Adams, 144 Ill.2d at 392, 163; Ill.Dec. 483, 581 N.E.2d 637; Adams, 198 Ill.App.3d at 85,144 Ill.Dec. 402,555 N.E.2d 761), substantive due process (Adams, 144 Ill.2d at 390,163 Ill.Dec. 483,581 N.E.2d 637; People v. Fuller, 324 Ill.App.3d 728, 734, 258 Ill.Dec. 273, 756 N.E.2d 255 (2001); Malchow, 306 Ill.App.3d at 673,239 Ill.Dec. 664,714 N.E.2d 583; Logan, 302 Ill. App.3d at 323,235 Ill.Dec. 539,705 N.E.2d 152; Adams, 198 Ill.App.3d at 84,144 Ill. Dec. 402,555 N.E.2d 761), ex post facto law (Malchow, 193 Ill.2d at 419,250 Ill. Dec. 670,739 N.E.2d 433; Guillen, 307 Ill.App.3d at 38,240 Ill.Dec. 470,717 N.E.2d 563; Malchow, 306 Ill.App.3d at 669,239 Ill.Dec. 664,714 N.E.2d 583; Logan, 302 Ill.App.3d at 331-32, 235 Ill.Dec. 539,705 N.E.2d 152; People v. Starnes, 273 Ill.App.3d 911, 914-15, 210 Ill.Dec. 417, 653 N.E.2d 4 (1995) (former version of act)), and double jeopardy (Malchow, 193 Ill.2d at 426,250 Ill.Dec. 670,739 N.E.2d 433; Guillen, 307 Ill.App.3d at 38,240 Ill.Dec. 470,717 N.E.2d 563; Malchow, 306 Ill.App.3d at 671-72,239 Ill.Dec. 664,714 N.E.2d 583).

What can be gleaned from these cases, however, are some general conclusions. First, is the purpose of the Act. The purpose of the Act was espoused by the appellate court in Adams. In Adams, the court looked to legislative comments, wherein the sponsor of the bill stated that it was "one of the most important Bills * * * in regards to protecting our children" (84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 208), and was designed to "help law enforcement agencies stop this kind of carnage on our children" (84th Ill. Gen. Assem., House Proceedings, June 23, 1986, at 208). The Adams court concluded that:

"Such statements are a clear indication that the purpose of the statute is to aid law enforcement in preventing future sex offenses against children." Adams, 198 Ill.App.3d at 80, 144 Ill.Dec. 402, 555 N.E.2d 761.

See also Adams, 144 Ill.2d at 386, 163 Ill.Dec. 483, 581 N.E.2d 637. According to the Adams appellate court, there was no indication in the legislative history "that the registration requirement was intended to serve the purpose of deterrence or retribution, two goals of punishment." Adams, 198 Ill.App.3d at 80, 144 Ill.Dec. 402, 555 N.E.2d 761. See also Adams, 198 Ill. App.3d at 84, 144 Ill.Dec. 402, 555 N.E.2d 761 (reiterating that the purpose of the Act was to protect children from sex offenders and to aid law enforcement agencies in doing so); People v. Taylor, 203 Ill.App.3d 636, 638, 149 Ill.Dec. 115, 561 N.E.2d 393 (1990) (the Act was promulgated for the protection of the general public from those prone to sex offenses). According to the supreme court, the Act was an additional...