People v. S.B.

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

7
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

12
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,

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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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