No. 3–09–0095
Opinion filed March 7, 2011
______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
In re S.B., ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
a Minor ) Peoria County, Illinois
)
(The People of the State of Illinois, )
)
Petitioner-Appellee, ) No. 06–JD–232
)
v. )
)
S.B., ) Honorable
) Chris L. Fredericksen,
Respondent-Appellant). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice McDade concurred in the judgment and opinion.
Justice Schmidt dissented, with opinion.
______________________________________________________________________________
OPINION
The respondent, S.B., was the subject of a juvenile petition alleging that he committed
aggravated criminal sexual assault (720 ILCS 5/12–14(b)(i) (West 2004)) and aggravated criminal
sexual abuse (720 ILCS 5/12–16(c)(2)(i) (West 2004)). The circuit court found the respondent
was not fit to stand trial. After a discharge hearing, the court dismissed the first count and found
the respondent “not not guilty” on the second count. The court subsequently entered an order
requiring the respondent to register as a sex offender. On appeal, the respondent argues, inter
alia, that the registration requirements of the Sex Offender Registration Act (Registration Act)
(730 ILCS 150/1 et seq. (West 2008)) do not apply to him because he was never adjudicated
delinquent. We reverse.
FACTS
The juvenile petition filed in this case alleged that the respondent, born June 5, 1991, was
delinquent based on an incident that occurred between June 1 and August 1, 2005. Count I
alleged that the respondent committed aggravated criminal sexual assault (720 ILCS
5/12–14(b)(i) (West 2004)) in that he committed an act of sexual penetration with a victim under
nine years of age by placing his finger inside her vagina. Count II alleged that the respondent
committed aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(2)(i) (West 2004)) in that he
touched the victim’s vagina with his hand. Eventually, the court found that the respondent was
not fit to stand trial and that it was not substantially probable he would attain fitness within one
year.
On August 28, 2007, the circuit court conducted a discharge hearing pursuant to section
104–25 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104–25 (West 2008)). At the
close of the hearing, the court found the evidence insufficient to prove the respondent committed
aggravated criminal sexual assault but sufficient to prove the respondent committed aggravated
criminal sexual abuse. Accordingly, the court dismissed the aggravated criminal sexual assault
count and found the respondent “not not guilty” of aggravated criminal sexual abuse.
On December 31, 2009, the State filed a motion to compel the respondent to register as a
sex offender pursuant to section 2(A)(1)(d) of the Registration Act (730 ILCS 150/2(A)(1)(d)
(West 2008). After a hearing, the circuit court granted the State’s motion and ordered the
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respondent to register as a sex offender. The respondent appealed.
ANALYSIS
On appeal, the respondent argues that the circuit court erred when it required him to
register as a sex offender. The respondent contends, inter alia, that juveniles qualify as sex
offenders under the Registration Act only if they have been adjudicated delinquent, as provided by
section 2(A)(5). 730 ILCS 150/2(A)(5) (West 2008). This argument presents a question of
statutory construction, which we review de novo. In re Estate of Dierkes, 191 Ill. 2d 326, 330
(2000).
“The cardinal rule of statutory construction, to which all other rules are subordinate, is to
ascertain and give effect to the legislature’s intent.” People v. Hanna, 207 Ill. 2d 486, 497
(2003). The best indicator of the legislature’s intent is the plain language of the statute itself.
Hanna, 207 Ill. 2d at 497-98. In giving effect to the legislature’s intent through the plain
language of a statute, we presume that the legislature did not intend absurd, inconvenient, or
unjust results. People v. Christopherson, 231 Ill. 2d 449, 454 (2008); Hanna, 207 Ill. 2d at 498
(citing Church of the Holy Trinity v. United States, 143 U.S. 457, 459-60 (1892)). “Accordingly,
courts should consider the statute in its entirety, keeping in mind the subject it addresses and the
legislature’s apparent objective in enacting it.” Christopherson, 231 Ill. 2d at 454.
Initially, we recognize that proceedings under the Juvenile Court Act of 1987 (705 ILCS
405/5–101 to 915 (West 2008)) differ from adult criminal proceedings. While proceedings
brought under the Juvenile Court Act are not criminal in nature, certain procedures from the adult
criminal system can apply. See generally People v. Taylor, 221 Ill. 2d 157, 166-67 (2006).
Section 5–101(3) of the Juvenile Court Act specifically provides that, “[i]n all procedures under
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this Article, minors shall have all the procedural rights of adults in criminal proceedings, unless
specifically precluded by laws that enhance the protection of such minors.” 705 ILCS
405/5–101(3) (West 2008). With this enhanced protection principle in mind, we now address the
merits of the respondent’s argument.
In relevant part, section 2 of the Registration Act provides:
“(A) As used in this Article, ‘sex offender’ means any person who is:
(1) charged pursuant to Illinois law *** with a sex offense set forth
in subsection (B) of this Section or the attempt to commit an included sex
offense, and:
***
(d) is the subject of a finding not resulting in an acquittal at
a hearing conducted pursuant to Section 104–25(a) of the Code of
Criminal Procedure of 1963 for the alleged commission or
attempted commission of such offense; or
***
(5) adjudicated a juvenile delinquent as the result of committing or
attempting to commit an act which, if committed by an adult, would
constitute any of the offenses specified in item (B), (C), or (C-5) of this
Section ***.
***
For purposes of this Section, ‘convicted’ shall have the same meaning as
‘adjudicated.’ ” 730 ILCS 150/2(A)(1)(d), (A)(5) (West 2008).
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The plain language of section 2 of the Registration Act indicates that the legislature intended to
limit the circumstances under which a juvenile could qualify as a sex offender. The only reference
to juveniles in section 2 is in subsection (A)(5). Section 2(A)(5) thus offers enhanced protection
for juveniles in that only juveniles who have been adjudicated delinquent for specified offenses fit
section 2's definition of “sex offender.” See 705 ILCS 405/5–101(3) (West 2008).
In addition to section 2(A)(5), the legislature’s intent to treat juveniles differently than
adults in the Registration Act appears in section 3–5, entitled, “Application of Act to adjudicated
juvenile delinquents.” 730 ILCS 150/3–5 (West 2008). In relevant part, section 3–5 provides:
“(a) In all cases involving an adjudicated juvenile delinquent who meets the
definition of a sex offender as set forth in paragraph (5) of subsection (A) of
Section 2 of this Act, the court shall order the minor to register as a sex offender.
(b) Once an adjudicated juvenile delinquent is ordered to register as a sex
offender, the adjudicated juvenile delinquent shall be subject to the registration
requirements set forth in Sections 3, 6, 6-5, 8, 8-5, and 10 for the term of his or
her registration.
(c) For a minor adjudicated delinquent for an offense which, if charged as
an adult, would be a felony, no less than 5 years after registration ordered pursuant
to subsection (a) of this Section, the minor may petition for the termination of the
term of registration. For a minor adjudicated delinquent for an offense which, if
charged as an adult, would be a misdemeanor, no less than 2 years after
registration ordered pursuant to subsection (a) of this Section, the minor may
petition for termination of the term of registration.
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(d) The court may upon a hearing on the petition for termination of
registration, terminate registration if the court finds that the registrant poses no
risk to the community by a preponderance of the evidence based upon the factors
set forth in subsection (e).” 730 ILCS 150/3–5 (West 2008).
Of paramount importance in this section is the procedure by which juveniles can petition the
circuit court to terminate his or her sex offender registration. 730 ILCS 150/3–5(c) (West 2008).
The Registration Act does not provide adults with the ability to petition the court to terminate sex
offender registration. The clear import of section 3–5 is to afford juveniles enhanced protection
under the Registration Act. See 705 ILCS 405/5–101(3) (West 2008).
In light of these enhanced protections, the State’s argument that the respondent qualifies
as a sex offender under section 2(A)(1)(d) is not consistent with the statutory scheme in the
Registration Act as it relates to juveniles. The State’s argument ignores the remedial distinction
between adults and juveniles contained in the Registration Act, in its entirety, that provides
enhanced statutory protection for juveniles.
The respondent’s status for the purposes of this case is a juvenile, not an adult. The
importance of this distinction cannot be understated. While the State could have sought transfer
of the case to the adult criminal system (see 705 ILCS 405/5–805(3) (West 2004) (allowing
discretionary transfer of certain juvenile cases to adult criminal court if the minor is 13 years of
age or older)), it chose not to do so. The case remained in the juvenile system and the respondent
therefore retained his status as a juvenile. The State may not apply adult criminal system
procedures to an individual with juvenile status under the Registration Act if doing so violates
provisions intended to offer enhanced protection for juveniles. 705 ILCS 405/5–101(3) (West
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2008).
Our conclusion finds further support in the absurd and unjust results that arise if an
individual with juvenile status is treated as an adult under the State’s literal reading of section
2(A)(1)(d). In this case, the result is a nondelinquent juvenile having fewer rights than a juvenile
who was actually adjudicated delinquent in that the former has no ability to petition the circuit
court to have his sex offender registration terminated pursuant to section 3–5(c). 730 ILCS
150/3–5(c) (West 2008). Similarly, a situation could arise, for example, in which a 16-year-old
who engaged in consensual sexual contact with a 15-year-old could be accused of criminal sexual
abuse (720 ILCS 5/12–15(b) (West 2008)) in a juvenile petition, found not fit to stand trial, found
“not not guilty” in a discharge hearing, required to register as a sex offender under section
2(A)(1)(d), and left with no ability to petition the court to terminate sex offender registration.
This result, as well as the result in this case, does not comport with the enhanced protection
principle contained in section 5–101(3) of the Juvenile Court Act. 705 ILCS 405/5–101(3) (West
2008). Accordingly, under the circumstances as uniquely presented in this case, we hold that the
court erred when it ordered the respondent to register as a sex offender.
Our resolution of the statutory interpretation issue obviates the need to address the
respondent’s remaining arguments on appeal.
For the foregoing reasons, we reverse the judgment of the circuit court of Peoria County
that required the respondent to register as a sex offender.
Reversed.
JUSTICE SCHMIDT, dissenting:
The trial court, noting that it had already found respondent unfit for trial and that no
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probability existed that respondent would become fit within one year, proceeded to a discharge
hearing pursuant to section 104-25 of the Code of Criminal Procedure of 1963 (the Code) (725
ILCS 5/104-25 (West 2008)). At that hearing, the court entered a judgment of acquittal pursuant
to section 104-25(b) (725 ILCS 5/104-25(b) (West 2008)) on behalf of respondent for the offense
of aggravated criminal sexual assault but did not acquit respondent of the aggravated criminal
sexual abuse charge.
Section 2(A)(1)(d) of the Registration Act clearly indicates that one qualifies as a sex
offender if he: (1) is charged pursuant to Illinois law; (2) with a sex offense; and (3) is subject to a
finding not resulting in an acquittal pursuant to section 104-25(a) of the Code. 730 ILCS
150/2(A)(1)(d) (West 2008). S.B. meets all the requirements of a sex offender as defined by that
section.
The majority concludes that the legislature only intended for juveniles adjudicated
delinquent to register pursuant to the Registration Act. This interpretation, by necessity, means
that the legislature specifically intended to exclude juveniles similarly situated as respondent from
registering as sex offenders, that is, juveniles charged with a sex offense, who have been found
unfit for trial but against whom proof beyond a reasonable doubt exists to support the State's
contention that the juvenile committed the offense. A trial court cannot enter "a finding not
resulting in an acquittal" under section 104-25 of the Code unless the evidence presented proves
respondent guilty beyond a reasonable doubt. 725 ILCS 5/105-24(b) (West 2008).
The majority relies heavily upon the fact that section 3-5(c) of the Registration Act allows
some juveniles who have been adjudicated delinquent to petition for early termination of sex
offender registration. 730 ILCS 150/3-5(c) (West 2008). One could reasonably question the
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wisdom of the scheme chosen by the legislature, which allows juveniles adjudicated delinquent to
petition to reduce the term for which they must register while not providing the same mechanism
to juveniles that are unfit for trial but subject to a finding not resulting in an acquittal. However,
one cannot say that this scheme points to the inescapable conclusion that the legislature did not
intend for juveniles such as respondent to register under the Registration Act. A juvenile
adjudicated delinquent has no right to a shorter term of registration; section 3-5 simply allows him
to petition to reduce the term.
I also reject respondent's argument that his discharge hearing was not an actual discharge
hearing under section 104-25 of the Code. 725 ILCS 5/104-25 (West 2008). S.B. asserts that
since a juvenile proceeding is not criminal in nature and section 104-25 is found in the Code, he
"was not a 'defendant' as referred to in section 104-25." The Juvenile Court Act states that, "In
all procedures under this Article, minors shall have all the procedural rights of adults in criminal
proceedings, unless specifically precluded by laws that enhance the protection of such minors.
Minors shall not have the right to a jury trial unless specifically provided by this Article." 705
ILCS 405/5-101(3) (West 2008). A section 104-25 discharge hearing is a procedural right
afforded adults. 725 ILCS 5/104-25 (West 2008). As such, it is incorporated into the Juvenile
Court Act by section 5-101(3) and the discharge hearing in this matter took place in accordance
with section 104-25 of the Code.
Respondent further argues that section 2(A)(1)(d) cannot apply to him as it only applies to
those "charged pursuant to Illinois law" of committing a sex crime. 730 ILCS 150/2(A)(1) (West
2008). He claims he was never "charged" with a crime as he was named in a juvenile petition and
not a complaint, information or indictment under the Code. I disagree. The petition alleged, inter
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alia, that respondent was delinquent on the basis of committing the act of aggravated criminal
sexual assault and aggravated criminal sexual abuse. Undoubtedly, there are differences between
a petition alleging delinquency and an information or indictment. See In re J.A.J., 243 Ill. App.
3d 808, 810 (1993) (citing In re S.R.H., 96 Ill. 2d 138 (1983) ("While the allegations of a petition
for wardship need not meet the standards of a criminal charging instrument, the petition must
apprise the accused of the precise offense charged with sufficient specificity to prepare his
defense.")).
The Juvenile Court Act sets forth the manner in which juveniles are accused of committing
offenses. 705 ILCS 405/5-120 (West 2008). Section 5-120 of the Juvenile Court Act notes that
proceedings "may be instituted under the provisions of this Article concerning any minor who ***
has violated or attempted to violate, regardless of where the act occurred, any federal or State law
or municipal or county ordinance." 705 ILCS 405/5-120 (West 2008). While these proceedings
may be initiated by filing a petition instead of an indictment or information, our supreme court has
routinely referred to respondents in such proceedings as having been "charged" with offenses.
See People ex rel. Davis v. Vazquez, 92 Ill. 2d 132, 137 (1982) ("The petition charged Michael,
then 15½ years old, with two counts of murder in the shooting deaths of Vincent and Gregory
Jackson on January 26, 1981."); In re A.G., 195 Ill. 2d 313, 314 (2001) ("On February 2, 1999,
the State filed a delinquency petition against the 16-year-old respondent, charging him with two
counts of residential burglary (720 ILCS 5/19-3 (West 1998)), one count of unlawful possession
of a controlled substance (720 ILCS 570/402(c) (West 1998)), and one count of theft (720 ILCS
5/16-1(a)(1)(A) (West 1998))."); People ex rel. Hanrahan v. Felt, 48 Ill. 2d 171, 172 (1971)
("two delinquency petitions were filed in the circuit court of Cook County in the interest of
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Donald Vance, a minor, age 14, which charged him with the offense of armed robbery and rape").
Respondent herein was alleged to have committed these crimes in the manner proscribed by
Illinois law in which juveniles are "charged" with offenses. See 705 ILCS 405/5-520 (West
2008). I find no support for the assertion that section 2(A)(1)(d) of the Act cannot apply to
respondent as he was never "charged pursuant to Illinois law."
Respondent falls within the definition of a sex offender as found in section 2(A)(1)(d) of
the Registration Act and, therefore, is subject to the Registration Act's registration requirements.
Because I disagree with the majority's conclusion, I must address respondent's additional
arguments.
A. Equal Protection
Respondent alleges that an interpretation of section 2(A)(1)(d) of the Registration Act
finding it applies to juveniles violates principles of equal protection. He claims such an interpreta-
tion impermissibly creates two classes of juvenile offenders: one that can petition to be removed
from the sex offender registry after either 2 or 5 years, and another that must remain on the
registry the entire 10 years. This impermissibly violates notions of equal protection, respondent
claims, by affording the first class of offenders more "rights," even though they have been
adjudicated delinquent following a full hearing in accordance with all the protections provided in
the Juvenile Court Act (705 ILCS 405/1-1 et seq. (West 2008)), than the second class of
offenders, who have been "found guilty" of nothing.
The State posits that respondent's interpretation of the statutes "would unequivocally be a
violation of the equal protection rights of the adjudicated delinquent juvenile, because, while both
situations involve juvenile sex offenders, respondent's argument treats them differently" where the
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State's interpretation treats them the same by requiring both to register. The State continues that
while one group, the adjudicated delinquent group, may be allowed to reduce its term of
registration, there is no guarantee in the statute that the term will be reduced. The ability to
petition for a reduced term after two or five years, the State claims, is insufficient to create an
equal protection violation. However, the State continues, the mandate suggested by respondent
that one group register and another need not register is enough to create such a violation.
An issue concerning the constitutionality of a statute presents questions of law, which we
review de novo. In re D.W., 214 Ill. 2d 289 (2005).
"When confronted with a claim that a statute violates con-
stitutional guarantees of due process or equal protection, a court
must first determine the nature of the right purportedly infringed by
the statute. [Citations.] Classification of the right affected is critical
because the nature of the right dictates the level of scrutiny courts
employ in determining whether the statute in question passes con-
stitutional muster. Unless a fundamental constitutional right is
implicated, the rational basis test applies, and the statute will be
upheld so long as it bears a rational relationship to a legitimate state
interest." In re D.W., 214 Ill. 2d at 310.
The right implicated in the instant case involves an individual's right to be free from having
to register as a sex offender pursuant to an order entered under section 2(A)(1)(d) of the
Registration Act. 730 ILCS 150/2(A)(1)(d) (West 2008). Our supreme court has determined
that the registration requirements of the Registration Act do not infringe on "fundamental" rights
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and are therefore subject to the rational basis test. In re J.W., 204 Ill. 2d 50 (2003). As such, the
Registration Act's registration requirement will be upheld so long as it bears a rational relationship
to a legitimate state interest. J.W., 204 Ill. 2d at 67 (quoting People v. Adams, 144 Ill. 2d 381,
390 (1991).
In People v. Adams, 144 Ill. 2d 381 (1991), our supreme court noted that an earlier
version of the Registration Act was passed "in response to concern over the proliferation of sex
offenses against children" and was designed to aid law enforcement agencies by requiring sex
offenders to register with local law enforcement authorities. Adams, 144 Ill. 2d at 386. The
intent of the legislature when enacting the Registration Act was "to create an additional method of
protection for children from the increasing incidence of sexual assault and sexual abuse." Adams,
144 Ill. 2d at 387. The Adams court held that the public interest to be served by the Registration
Act was the assistance of law enforcement in the protection of children and it served that purpose
by providing officers ready access to information on known child sex offenders. Adams, 144 Ill.
2d at 390. The Adams court concluded that there was nothing unreasonable in the statute's
method of serving its purpose given the direct relationship between the registration of sex
offenders and the protection of children. Adams, 144 Ill. 2d at 391. Undoubtedly, the State has a
legitimate interest in protecting children. The Registration Act's registration requirements as
applied to sex offenders as described in section 2(A)(1)(d), be they adult or juvenile, bears a
rational relationship to that interest.
I acknowledge that respondent, unlike a juvenile adjudicated delinquent, would not be able
to apply for termination of his registration in five years. See 730 ILCS 152/121 (West 2008); 730
ILCS 150/3-5(c) (West 2008). However, this dichotomy does not violate his equal protection
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rights.
"Equal protection requires the government to deal with
individuals who are 'similarly situated' in a similar manner. [Cita-
tion.] The equal protection clause is triggered when the law 'lays an
unequal hand on those who have committed intrinsically the same
quality of offense.' [Citation.] A claim that a statute violates the
equal protection clause requires the determination of whether a
fundamental right is involved or whether the statute discriminates
against a suspect class. [Citation.] If neither factor is involved, the
court uses the rational basis test to determine whether the statute
irrationally differentiates between persons similarly situated. [Cita-
tion.] Under the rational basis test, the statutory classification need
only bear a rational relationship to a legitimate state goal. [Cita-
tion.] An equal protection challenge governed by the rational basis
standard is limited: 'if any statement of facts may be reasonably
conceived to justify the enactment, it must be upheld.' [Citation.]"
People v. Beard, 366 Ill. App. 3d 197, 205 (2006).
Sex offenders are not a suspect class nor are they faced with the implication of a funda-
mental right. My best guess is that the failure to include these juveniles in the group who can
petition for early termination of the registration requirement is simply a legislative oversight.
Regardless of the reason, I find no constitutional infirmity.
Equal protection does not require that all persons be treated equally. People v. Pembrock,
14
62 Ill. 2d 317 (1976). Respondent was found unfit to stand trial. This differentiates him from a
juvenile found fit to stand trial and ultimately adjudicated delinquent. His term of registration
does not exceed that of an adjudicated juvenile yet, unlike a juvenile that has been adjudicated
delinquent, he cannot petition to reduce his term of registration. The majority states this literal
reading of the statute creates an "absurd and unjust" result. Slip op. at 6-7.
Let us look at an analogous situation. Under section 104-25, an adult found "not not
guilty" can be held for treatment up to the maximum time he could have been incarcerated had he
been convicted. However, a person convicted of many offenses would be eligible for day-for-day
good-time credit while incarcerated. One who is confined after being found "not not guilty" is not
entitled to the good-time credit. See People v. Rasgaitis, 222 Ill. App. 3d 855 (1991). If being
involuntarily confined for a time period equal to the maximum sentence available had he been
convicted, without the opportunity to apply for good-time credit, does not violate equal protec-
tion concerns, I fail to see how not being able to apply for early termination of registration would
constitute an equal protection violation under the facts before us.
Respondent next alleges the discharge hearing denied him his constitutional right to due
process. Respondent's argument has already been rejected by our supreme court. People v.
Waid, 221 Ill. 2d 464 (2006).
I respectfully dissent.
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