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People v. Logan, No. 3-97-0885 2nd Dist. 12/31/98 |
No. 3--97--0885
December 31, 1998
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
ILLINOIS, Plaintiff-Appellee, v. CARL LOGAN, Defendant-Appellant. of Du Page County. No. 96--CF--1919 Honorable Thomas E. Callum, Judge,
Presiding. PRESIDING JUSTICE GEIGER delivered the opinion of
the court: The defendant, Carl Logan, appeals from the April
17, 1997, order of the circuit court of Du Page County denying his motion to
dismiss his indictment which charged him with the offense of unlawful failure to
register as a sex offender (730 ILCS 150/3 (West 1996)). Following a bench
trial, he was convicted of the charged offense and was sentenced to 60 days'
imprisonment and 30 months' probation. He now appeals, arguing that the Sex
Offender Registration Act (730 ILCS 150/1 et seq. (West Supp. 1997))
and the Sex Offender and Child Murderer Community Notification Law (730 ILCS
152/101 et seq. (West Supp. 1997)) are unconstitutional in that they
(1) violate the ex post facto clauses of the United States and Illinois
Constitutions; (2) constitute bills of attainder; (3) violate his right to due
process; (4) violate the terms of his plea agreement; (5) are fundamentally
unfair; and (6) violate his right to privacy. I. FACTS On October 2, 1996, the defendant was charged by
indictment with the offense of unlawful failure to register as a sex offender
(730 ILCS 150/3 (West 1996)). The indictment alleged that the defendant failed
to register as a sex offender within 30 days of moving to Westmont. On December
2, 1996, the defendant filed a motion to dismiss his indictment, raising
essentially the same issues noted above. According to the defendant's motion, he
was convicted of a sex offense in 1990 and was subsequently sentenced to the
Department of Corrections. He was released from prison in 1992. The defendant
argued that, although the Sex Offender Registration Act (730 ILCS 150/1 et
seq. (West 1996)) was enacted after his conviction, he was nonetheless
required to register under its provisions. Following a hearing, the trial court denied the
defendant's motion to dismiss the indictment. In so ruling, the trial court
relied upon People v. Adams, 144 Ill. 2d 381 (1991), wherein the
Illinois Supreme Court upheld the Habitual Child Sex Offender Registration Act
(Ill. Rev. Stat. 1987, ch. 38, pars. 221 through 230) against an eighth
amendment and due process challenge. The trial court also noted that, in
People v. Starnes, 273 Ill. App. 3d 911 (1995), the Illinois Appellate
Court, First District, upheld the retroactive application of the Child Sex
Offender Registration Act (730 ILCS 150/1 et seq. (West 1994)) after
determining that the act did not impose an unconstitutional restraint on liberty
or property. On August 26, 1997, the defendant was convicted of
the offense of unlawful failure to register as a sex offender. Following the
denial of his posttrial motion, the defendant filed a timely notice of appeal.
II. REVIEW OF THE REGISTRATION ACT AND
NOTIFICATION LAW A. The 1986 Registration Act The legislature enacted this state's first sex
offender registration law in 1986 and has since amended the law several times.
The first registration law enacted in 1986 was entitled the Habitual Child Sex
Offender Registration Act (Habitual Registration Act) (Ill. Rev. Stat. 1987, ch.
38, pars. 221 through 230). The Habitual 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. 221 (A), (B)(1), 223. Our supreme court considered the constitutionality
of the Habitual Registration Act in People v. Adams, 144 Ill. 2d 381
(1991). In Adams, the defendant argued that the registration
requirements denied him his right to due process and constituted cruel and
unusual punishment in violation of the eighth amendment. Adams, 144
Ill. 2d at 385-86. The court rejected the defendant's due process argument,
holding that the registration requirements provided a reasonable method of
accomplishing the legislature's desired objective of protecting children.
Adams, 144 Ill. 2d at 390. In addition, the supreme court also rejected the
defendant's eighth amendment argument, holding that the registration requirement
did not constitute cruel and unusual punishment. Adams, 144 Ill. 2d at
389. In so ruling, the supreme court noted that the legislative history of the
act indicated that its purpose was to protect children and was therefore
nonpenal. Adams, 144 Ill. 2d at 387. Moreover, the court explained that
the registration requirement was not severe in comparison to the potential
alternative of spending an extended period of time in prison. Adams,
144 Ill. 2d at 387-88. The court therefore concluded that the Habitual
Registration Act did not constitute cruel and unusual punishment under the
eighth amendment. Adams, 144 Ill. 2d at 389. B. The 1993 Registration Act Effective January 1, 1993, the Habitual Registration
Act was amended, and its title became the Child Sex Offender Registration Act
(730 ILCS 150/1 et seq. (West 1994)). This act required the
registration of (1) all child sex offenders who, after July 1986, had been
convicted of at least two sex crimes; or (2) 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). In People v. Starnes, 273 Ill. App. 3d 911
(1995), the defendant argued that the registration requirements of the Child Sex
Offender Registration Act constituted punishment in violation of state and
federal ex post facto clauses. Starnes, 273 Ill. App. 3d at
913. In 1994, the defendant in Starnes was convicted of a sex offense
which took place from 1990 to 1991. Starnes, 273 Ill. App. 3d at 912.
The defendant argued that, at the time of the offense, the Habitual Registration
Act required registration only after conviction of a second offense. However,
because he was convicted of the sex offense after the effective date of the
Child Sex Offender Registration Act, he was required to register after
conviction of a first offense. Starnes, 273 Ill. App. 3d at
913. On appeal, the Appellate Court, First District,
determined that the defendant had waived his ex post facto argument as
he failed to raise the issue in the trial court. Starnes, 273 Ill. App.
3d at 914. Notwithstanding this determination, the court stated that, even if
the issue had not been waived, the defendant would not prevail as the
registration provisions did not constitute punishment in violation of the ex
post facto clause. Starnes, 273 Ill. App. 3d at 915. The court in
Starnes noted that the Child Sex Offender Registration Act only
required a convicted child sex offender to fill out a form informing police of
his address and determined that such a requirement did not constitute
punishment. Starnes, 273 Ill. App. 3d at 915. In addition, the court noted that a defendant did
not have an absolute right to be tried or sentenced under the law as it existed
at the time of the offense. Starnes, 273 Ill. App. 3d at 915. The court
explained that statutes imposing some collateral consequence upon a conviction
may be applied retroactively if their purpose is not to punish the offender but
to protect some other legitimate public interest. Starnes, 273 Ill.
App. 3d at 915. Since the statute at issue was designed to aid law enforcement
agencies, the court concluded that its provisions could be applied
retroactively. Starnes, 273 Ill. App. 3d at 915. C. The 1996 and 1997 Registration Act
and Notification Law The legislature further modified the registration
requirements under the Sex Offender Registration Act (730 ILCS 150/1 et
seq. (West 1996)), which became effective January 1, 1996. Unlike its
predecessors, this act applied retroactively to all sex offenders, as defined by
the statute. 730 ILCS 150/2 (West 1996). In addition, 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 (Registration Act) (730
ILCS 150/1 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 (Notification Law) (730
ILCS 152/101 et seq. (West Supp. 1997)) became effective. The defendant
herein fails to cite to the amended version of the Registration Act and instead
only cites the repealed version of the Notification Law. However, as the
recently amended version of the Registration Act and the newly enacted
Notification Law have retroactive application to all sex offenders as defined by
the Registration Act, we will focus our discussion on the constitutionality of
these statutes as amended. 1. Persons Covered by the Registration
Act The Registration Act requires all sex offenders, as
defined by the Act, to register within 10 days of establishing a residence or
domicile in any county for more than 10 days. 730 ILCS 150/3(b) (West Supp.
1997). The category of sex offenders includes any person who is convicted of a
sex offense or who is certified as a sexually dangerous person pursuant to the
Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq. (West 1996)).
730 ILCS 150/2(A)(1)(a), (2) (West Supp. 1997). "Sex offenses" include, for
example, criminal sexual assault, child pornography, indecent solicitation of a
child, and criminal sexual abuse. 730 ILCS 150/2(B)(1) (West Supp.
1997). 2. Registration Under the Registration Act, any sex offender
convicted or adjudicated prior to January 1, 1996, whose liability for
registration had not yet expired was required to register prior to January 31,
1996. 730 ILCS 150/3(c)(2) (West Supp. 1997). All sex offenders convicted on or
after January 1, 1996, are required to register in person within 10 days after
the entry of the sentencing order. 730 ILCS 150/3(c)(3)(West Supp. 1997). Any
convicted sex offender who is unable to comply with the registration
requirements because he is confined, institutionalized, or imprisoned on or
after January 1, 1996, is required to register within 10 days of discharge,
parole, or release. 730 ILCS 150/3(c)(4) (West Supp. 1997). The registrant must provide identification and
documentation that substantiates proof of residence at the registering address
and must pay a $10 initial registration fee and a $5 annual renewal fee. 730
ILCS 150/3(c)(5), (c)(6) (West Supp. 1997). In addition, the registrant must
provide a written and signed statement, and registration may also include the
registrant's fingerprints and photograph. 730 ILCS 150/8 (West Supp.
1997). Section 6 of the Registration Act provides that any
person who has been (1) adjudicated to be sexually dangerous and is later
released or (2) found to be no longer sexually dangerous and discharged must
report in person to the law enforcement agency with whom he last registered no
later than 90 days after the date of his last registration and every 90 days
thereafter for the period of his or her natural life. 730 ILCS 150/6, 7 (West
Supp. 1997). All other registrants must report to the appropriate law
enforcement agency on a yearly basis for a period of 10 years after conviction
or adjudication. 730 ILCS 150/6, 7 (West Supp. 1998). In addition, all
registrants must provide the law enforcement agency with whom they last
registered with written notice of any change of address. 730 ILCS 150/6 (West
1996). Under section 10 of the Registration Act, the failure to comply with the
Registration Act is a Class 4 felony. 730 ILCS 150/10 (West Supp. 1997).
3. Community Notification Under section 120 of the Notification Law, the
sheriff of the county in which the registrant resides is required to disclose to
certain institutions the registrant's name, address, date of birth, and offense
or adjudication. 730 ILCS 152/120 (West Supp. 1997). These institutions include
schools, child care facilities, and the Department of Children and Family
Services. 730 ILCS 152/120 (a)(2), (a)(3), (a-4) (West Supp. 1997). Furthermore, the Department of State Police and any
law enforcement agency having jurisdiction may, at its discretion, disclose to
any person likely to encounter a registered sex offender the following
information: (1) the registrant's name, address, and date of birth; (2) the
offense of which he was convicted; and (3) his adjudication as a sexually
dangerous person. 730 ILCS 152/120(b) (West Supp. 1997). In addition, the
registrant's name, address, date of birth, and offense or adjudication is open
to inspection by the public according to procedures set by the municipal police
department or sheriff. 730 ILCS 152/120(c) (West Supp. 1997). Moreover, the
Notification Law provides that the Department of State Police shall establish
and maintain a sex offender database. 730 ILCS 152/115 (West Supp.
1997). III. EX POST FACTO ANALYSIS The defendant first contends that the retroactive
application of the Registration Act and the Notification Law violates the ex
post facto clauses of the United States Constitution (U.S. Const., art. I,
§9, cl. 3) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I,
§16). He notes that, at the time of the original offense, he was not required to
register as a sex offender. The defendant therefore contends that the
registration requirements and the community notification provisions constitute
additional punishment. In support of his contention, the defendant relies
upon Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S.
Ct. 554 (1963). In that case, the United States Supreme Court delineated the
following seven factors to consider in determining whether a statute is
punitive: (1) whether the sanction involves an affirmative disability or
restraint; (2) whether the sanction has historically been regarded as a
punishment; (3) whether the sanction comes into play only on a finding of
scienter; (4) whether the sanction will promote the traditional aims of
punishment (retribution and deterrence); (5) whether the behavior to which the
sanction applies is already a crime; (6) whether an alternative purpose to which
the sanction may rationally be connected is assignable for it; and (7) whether
the sanction appears excessive in relation to the alternative purpose assigned.
Mendoza-Martinez, 372 U.S. at 168-69, 9 L. Ed. 2d at 661, 83 S. Ct. at
567-68. In addition, the defendant notes that the penalty
for violating the Registration Act was amended, effective June 1, 1996. 730 ILCS
150/10 (West 1996). The amendment changed the penalty for violation of the
Registration Act from a Class A misdemeanor to a Class 4 felony. 730 ILCS 150/10
(West 1996). He contends that this enhanced penalty also violates the ex
post facto clause. A. Intent-Effects Test A statute violates the ex post facto
clauses of the United States and Illinois Constitutions if it criminalizes
conduct which was previously legal or if it increases the punishment for an
existing crime. Starnes, 273 Ill. App. 3d at 914. The purpose of the
ex post facto clause is to ensure that legislative enactments give fair
warning of their effect and permit individuals to rely on their meaning until
explicitly changed. People v. Granados, 172 Ill. 2d 358, 367
(1996). The United States Supreme Court recently considered
whether Kansas's Sexually Violent Predator Act constituted punishment in
violation of the ex post facto clause. See Kansas v.
Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). The
statute at issue in Hendricks established the procedures for the
involuntary civil commitment of persons who, due to a "mental abnormality" or
"personality disorder," are likely to engage in "predatory acts of sexual
violence." Hendricks, 521 U. S. at ___, 138 L. Ed. 2d at 505, 117 S.
Ct. at 2076. The defendant in Hendricks argued that the Kansas law
violated the ex post facto clause because it established criminal
proceedings that amounted to additional punishment. Hendricks, 521 U.
S. at ___, 138 L. Ed. 2d at 514, 117 S. Ct. at 2081. In analyzing this particular issue, the Supreme
Court first considered the legislative intent behind the Kansas law. The court
noted that the act was codified within the Kansas probate code and that the act
itself stated that it created a "civil commitment procedure."
Hendricks, 521 U. S. at ___, 138 L. Ed. 2d at 514-15, 117 S. Ct. at
2082. The court therefore determined that the Kansas legislature intended to
create a civil commitment scheme. Hendricks, 521 U. S. at ___, 138 L.
Ed. 2d at 515, 117 S. Ct. at 2082. The Supreme Court next considered whether the law
had a punitive effect despite its nonpunitive intent by examining several of the
factors enunciated in Mendoza-Martinez. Hendricks, 521 U.S. at
__, 138 L. Ed. 2d at 515-16, 117 S. Ct. at 2082-83. The court noted that the
Kansas act did not implicate the primary objectives of criminal punishment,
namely retribution and deterrence. Hendricks, 521 U. S. at __, 138 L.
Ed. 2d at 515, 117 S. Ct. at 2083. Nor did the application of the act turn on a
finding of scienter. Hendricks, 521 U. S. ___, 138 L. Ed. 2d at 515,
117 S. Ct. at 2083. The court also noted that, although the civil commitment
scheme at issue involved an affirmative restraint, such a restraint did not
constitute punishment. Hendricks, 521 U. S. ___, 138 L. Ed. 2d at 516,
117 S. Ct. at 2083. The court therefore concluded that, although the Kansas act
provided for confinement of sexual predators in state institutions, it did not
impose punishment in violation of the ex post facto clause of the
Constitution. Hendricks, 521 U. S. at ___, 138 L. Ed 2d at 519, 117 S.
Ct. at 2085. Although the United States Supreme Court has not yet
addressed the constitutionality of a sex offender registration and notification
law, we note that courts in other jurisdictions have concluded that such laws do
not amount to punishment in violation of the ex post facto clause using
the intent-effects test utilized in Hendricks. See State v.
Cook, 83 Ohio St. 3d 404, 415, 700 N.E.2d 570, 579-80 (1998); Russell
v. Gregoire, 124 F.3d 1079, 1087 (9th Cir. 1997); Doe v. Pataki,
120 F.3d 1263, 1276 (2d Cir. 1997). In order to determine whether the Illinois
Registration Act and Notification Law violate the federal and state ex post
facto clauses, we will apply the intent-effects test used by the Supreme
Court in Hendricks. First, we will consider the legislative intent
behind the statutes at issue. If the legislative intent appears to be
nonpunitive, we must then determine whether these statutes have a punitive
effect despite their nonpunitive intent. Hendricks, 521 U. S. at ___,
138 L. Ed. 2d at 515, 17 S. Ct. at 2082. 1. Legislative Intent As noted above, in interpreting an earlier version
of the Registration Act, our supreme court determined that its purpose was to
create an additional method of protection from the increasing incidence of
sexual assault and sexual abuse. See Adams, 144 Ill. 2d at 387. Indeed,
during the legislative debates concerning the amendment of the Registration Act,
Senator Bomke stated, "[I]t's important to offer this legislation to protect our
children." 89th Ill. Gen. Assem., Senate Proceedings, May 8, 1996, at 89
(statements of Senator Bomke). He further stated, "We feel that this is not
punishment. It's just merely *** requiring [the sex offenders] to register ***."
89th Ill. Gen. Assem., Senate Proceedings, May 8, 1996, at 92 (statements of
Senator Bomke). Furthermore, commenting on the Registration Act and Notification
Law, Representative Klinger stated, "This Bill, again, is really focused at the
delivery of information by the state police and how that information is
organized." 90th Ill. Gen. Assem., House Proceedings, April 8, 1997, at 238
(statements of Representative Klinger). In light of the principles articulated
in Adams, as well as the legislative history of both laws, we conclude
that the legislature did not intend to impose punishment with the enactment of
these statutes. 2. Punitive Effect We must next determine whether the statutes at issue
have a punitive effect despite their nonpunitive intent. The defendant argues
that these statutes are punitive in effect based upon the factors discussed in
Mendoza-Martinez, 372 U.S. at 168-169, 9 L. Ed. 2d at 661, 83 S. Ct. at
567-68. As the United States Supreme Court considered several of these factors
in Hendricks (521 U. S. at __, 138 L. Ed. 2d at 515-16, 117 S. Ct. at
2082-83), we will use these factors to guide our analysis and will consider each
in turn. a. Affirmative Disability or
Restraint Contrary to the defendant's contentions, we do not
believe that the physical act of registering constitutes an affirmative
restraint. The registration requirements do not disable a sex offender's choice
of residence. Moreover, this court has noted that the registration requirement
places no more constraint on the liberty of someone required to register with
the local police authority than do many of the well-established civil
disabilities associated with felony convictions in Illinois, such as limitations
on the possession of firearms, the right to vote, or the right to hold public
office. See People v. Adams, 198 Ill. App. 3d 74, 80 (1990). We
therefore conclude that the registration process is a de minimis
administrative requirement. See generally Cook, 83 Ohio St. 3d at 418,
700 N.E.2d at 583. The defendant further contends that the notification
provision constitutes a restraint as it subjects him to the risk of physical
violence, stigma, and impairment of employment opportunities. We disagree.
Although notification conveys information about the offender to the public, any
stigma that may occur is a result of the offender's status as a felon and not as
a direct result of the notification. See generally Lanni v. Engler, 994
F. Supp. 849, 853 (E.D. Mich. 1998)(holding that Michigan's registration and
notification law, which creates a sex offender registry organized by zip code,
does not impose punishment in violation of the ex post facto
clause). Furthermore, our inquiry into the law's effects cannot consider the
possible vigilante responses of citizens to notification. Courts must presume
that law enforcement will protect offenders from vigilantism. See
Russell, 124 F.3d at 1091. b. Historically Regarded as
Punishment The defendant cites Doe v. Pataki, 940 F.
Supp. 603 (1996), in support of his contention that the sex offender
registration and notification requirements traditionally have been viewed as
punishment. However, we note that Doe was recently reversed. See
Doe v. Pataki, 120 F.3d 1235, 1281 (2d Cir. 1997)(rejecting the
defendant's historical analogy and holding that registration and notification
provisions of New York's Sex Offender Registration Act did not impose punishment
under ex post facto clause). Moreover, we note that public notification
in and of itself has never been regarded as punishment when done in furtherance
of a legitimate governmental interest. See Lanni, 994 F. Supp. at 853.
As noted above, the registration and notification provisions at issue are
intended to protect the public, not punish offenders. See Adams, 144
Ill. 2d at 387. We therefore reject the defendant's contention that registration
and notification laws have been historically regarded as punishment. c. Scienter According to the defendant, when a statute requires
proof of scienter, a sanction is likely to be deemed criminal. However, the
application of the registration and notification provisions at issue do not
require the element of scienter. The offender need only be released into the
community to trigger the provisions of these statutes. We therefore conclude
that this factor is not indicative of a punitive effect. d. Retribution and
Deterrence The defendant contends that the dissemination of his
identity and address will result in public ostracism and therefore has a
deterrent effect. However, even assuming that registration and notification have
some deterrent effect, such an effect does not compel the conclusion that these
statutes are punitive. Indeed, the Supreme Court has recognized that deterrence
may serve civil as well as criminal goals. See United States v. Ursery,
518 U.S. 267, 292, 135 L. Ed. 2d 549, 570, 116 S. Ct. 2135, 2149 (1996).
e. Behavior Already Criminal The defendant fails to specifically discuss this
factor. However, we note that the requirements of the Registration Act and
Notification Law are triggered by the existence of a prior conviction of a sex
offense. 730 ILCS 150/2(A)(1)(a) (West Supp. 1997). Although these statutes are
triggered by behavior that is already a crime (See generally Pataki,
120 F.3d at 1281), we note that this is one of many factors our court considers
in the ex post facto analysis. f. Alternate Remedial
Purpose This element relates to the existence of a
nonpunitive or alternative purpose rationally related to the statute. See
generally Flemming v. Nestor, 363 U.S. 603, 615, 4 L. Ed. 2d.
1435, 1447, 80 S. Ct. 1367, 1375 (1960). Registration allows local law
enforcement to collect and maintain a bank of information on offenders and to
monitor offenders. Notification provisions allow the dissemination of relevant
information to the public. As discussed above, the legislative history of these
statutes indicates that they were enacted for the purpose of protecting the
public. Accordingly, we find that the laws at issue have an alternate remedial
purpose. g. Excessiveness in Relation to
Alternative Purpose Under the statutes at issue, offenders must supply
their names, addresses, a written statement, and, in some instances, their
fingerprints and photograph. See 730 ILCS 150/3(c)(5) (West Supp. 1997). As
noted above, notification is restricted to certain institutions, and the
registration information is available for public inspection according to
procedures set forth by law enforcement officials. 730 ILCS 152/120 (West Supp.
1997). We believe that such provisions are not excessive in relation to their
purpose. Instead, we conclude that these statutes are carefully tailored to meet
the legislature's purpose of protecting the community. B. Conclusion After examining the legislative intent and balancing
all of the aforementioned factors, we conclude that the purpose of the
registration and notification provisions is to protect the public and not to
punish sex offenders and that their effect is not punitive. Moreover, we note
that most courts from other jurisdictions have held that sex offender
registration and notification laws do not constitute punishment in violation of
the ex post facto clause. See State v. Cook, 83 Ohio St. 3d
404, 415, 700 N.E.2d 570, 579-80 (1998); Lanni v. Engler, 994 F. Supp.
849, 854 (E.D. Mich. 1998); Russell v. Gregoire, 124 F.3d 1079, 1093
(9th Cir. 1997); Doe v. Pataki, 120 F.3d 1263, 1284 (2d Cir. 1997);
Doe v. Kelley, 961 F. Supp. 1105, 1111 (W.D. Mich. 1997). As discussed above, we also do not believe that the
defendant has met his burden of presenting by the "clearest proof" that the
statutory scheme at issue is so punitive in effect so as to negate the
nonpunitive legislative intent. See Hendricks, 521 U.S. at ___, 138 L.
Ed. 2d at 515, 117 S. Ct. at 2081. Accordingly, we hold that the registration
and notification provisions at issue do not violate the ex post facto
clauses of the United States and Illinois Constitutions. Moreover, as we do not
believe that the registration and notification provisions constitute punishment,
we reject the defendant's bill of attainder argument. In addition, we conclude that the enhanced penalty
provision of the Registration Act does not violate the United States or Illinois
ex post facto clauses. 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). Prior to
this amendment, a violation of the Registration Act constituted a Class A
misdemeanor. See 730 ILCS 150/10 (West 1994). The indictment against the
defendant alleged that he committed the offense of unlawful failure to register
as a sex offender on September 18, 1996. As the amendment to section 10 of the
Registration Act occurred prior to the date that the 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. DUE PROCESS The defendant contends that, because the
registration and notification laws do not provide for a hearing, he has been
deprived of his right to due process. He argues that he has "suffered the infamy
and degradation of the notification provisions" and that the statutes at issue
affect his fundamental right to travel. In order to trigger the protections of the due
process clause, the defendant must show that the registration and notification
statutes at issue deprive him of a protected liberty or property interest.
Lanni, 994 F. Supp. at 855. We do not believe that the defendant has
met this burden. The Registration Act merely compiles truthful, public
information, and the Notification Law makes this information more readily
available. See Lanni, 994 F. Supp. at 855. Any injury to the
defendant's reputation is a result of his underlying conviction of a sex
offense. In addition, the defendant fails to identify how the registration
requirements impair his ability to travel. We therefore conclude that the
defendant has failed to show that the registration and notification laws at
issue deprive him of a protected liberty or property interest. Even if the defendant could prove the deprivation of
a liberty or property interest, his due process claim must still fail. The
defendant contends that these statutes do not provide for a hearing to determine
the dangerousness of the offender. However, as the Registration Act and
Notification Law subject all sex offenders as defined by the Act to the
registration and notification provisions, law enforcement authorities have no
discretion to determine which offenders would be exposed to public
dissemination. Thus, a hearing would serve no purpose. See Lanni, 994
F. Supp. at 855. For these reasons, we reject the defendant's due
process argument. V. VIOLATION OF PLEA
AGREEMENT The defendant next contends that the Notification
Law violates his right to due process as the terms of his plea agreement did not
include community notification of his conviction. Due process protections
require that a plea agreement be made voluntarily and intelligently. People
v. Burt, 168 Ill. 2d 49, 64 (1995). A defendant must therefore have an
understanding of the charge and the consequences of the plea. Brady v.
United States, 397 U.S. 742, 748, 25 L. Ed. 2d 747, 756, 90 S. Ct. 1463,
1469 (1970). The requirement that a defendant have an
understanding of the consequences of a plea, however, extends only to direct
consequences and not to collateral consequences. People v. Maury, 287
Ill. App. 3d 77, 82 (1997). We note that the Illinois Appellate Court, First
District, concluded in Starnes that registration requirements similar
to those at issue in the instant case impose only a collateral consequence upon
conviction as they do not constitute punishment. Starnes, 273 Ill. App.
3d at 915. Similarly, we believe that the notification provisions at issue
constitute only a collateral consequence of the defendant's conviction rather
than a penalty or enhancement of his sentence. Since the registration and
notification requirements constitute collateral consequences of the defendant's
conviction, we conclude that the Registration Act and Notification Law do not
invalidate the terms of his plea agreement. In addition, as the statutes at
issue are carefully tailored to meet the legislature's purpose of protecting the
community, we reject the defendant's argument that these laws are fundamentally
unfair. VI. RIGHT TO PRIVACY For his final argument, the defendant contends that
the Registration Act and Notification Law violate his right to privacy by
disseminating information concerning his address, causing him embarrassment and
ridicule. However, the defendant's interest in information concerning his home
address is not within the "zone of privacy" protected under the Constitution.
See Carey v. Population Services International, 431 U.S. 678, 684-85,
52 L. Ed. 2d 675, 684, 97 S. Ct. 2010, 2015-16, (1977)(only personal decisions
relating to marriage, procreation, contraception, family relationships, child
rearing, and education are within the "zone of privacy"). The defendant also argues that the information
required by the Registration Act is not "freely available" to the public and
would otherwise require a diligent search of courthouse files, county archives,
and local police stations. However, as the defendant acknowledges, the
information contained in the notification (the offender's name, address, date of
birth, and conviction) is already a matter of public record. The defendant
cannot argue that the compilation and dissemination of truthful information that
is already, albeit less conveniently, a matter of public record constitutes a
legitimate privacy interest. See Kelley, 961 F. Supp. at 1112. In
addition, as discussed above, any attendant consequences, such as embarrassment
or ridicule, are caused by the offender's status as a felon and not as a direct
result of the notification. See Lanni, 994 F. Supp. at 853. For all
these reasons, we reject the defendant's argument. For the foregoing reasons, the judgment of the
circuit court of Du Page County is affirmed. Affirmed. BOWMAN and HUTCHINSON, JJ.,
concur.
PEOPLE OF THE STATE OF
Appeal from the Circuit
Court