People v. Phillip C.

FOURTH DIVISION
March 31, 2006

1-04-1109

In re PHILLIP C., a minor, ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Plaintiff-Appellee, )
)
v. )
)
Phillip C., ) Honorable
) Terrence V. Sharkey,
Respondent-Appellant). ) Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court:

After his arrest on March 27, 2003, the State filed a

petition for adjudication of wardship over defendant Phillip C.,

a 16-year-old minor, alleging armed robbery and aggravated

kidnapping of a minor as the bases for wardship. After a jury

trial conducted pursuant to the extended juvenile jurisdiction

prosecutions act (EJJ) (705 ILCS 405/5-810 (West 2002)),

defendant was convicted of aggravated kidnapping of Miguel B., a

17-year-old.

The circuit court sentenced defendant to an indeterminate

period of time at the Juvenile Department of Corrections. The

circuit court also imposed a 20-year adult sentence, which was

automatically stayed and would not be executed unless he violated

the conditions of his juvenile sentence (705 ILCS 405/5-

810(4)(ii) (West 2002)). By virtue of his conviction for
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aggravated kidnapping of a minor, defendant was also required to

register as a sex offender pursuant to section 2(B)(1.5) of the

Sex Offender Registration Act (Registration Act) (730 ILCS

150/2(B)(1.5) (West 2002)). On appeal, defendant argues that (1)

the Registration Act is unconstitutional as applied to him and

(2) the circuit court's imposition of a 20-year adult sentence

was excessive. For the following reasons, we reject defendant's

as-applied challenge to the Registration Act and affirm the

circuit court's imposition of a 20-year adult sentence.

BACKGROUND

The facts of this case are largely undisputed. At trial,

Miguel B. testified that as he was standing by his car on the

afternoon of March 27, 2003, defendant came up from behind him,

stuck a black comb-knife in his back, forced him into the car,

and told him to "drive." As Miguel drove, defendant asked Miguel

whether he belonged to a gang or had any gang tattoos. When

Miguel said that he did not, defendant lifted up Miguel's shirt

and pant legs apparently searching for tattoos. Defendant then

took Miguel's wallet and told him to drive to the criminal courts

building at 26th and California.

As Miguel approached the criminal courts building, he spotted Cook County

sheriff=s deputy Thomas Scalise parked on the opposite side of the street. Miguel

swerved toward Deputy Scalise=s car, stopping about two feet shy of hitting the car, and

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exited his car. Deputy Scalise then arrested defendant.

Deputy Scalise testified that he was parked outside of the criminal courts building

when a car suddenly swerved toward him. After the car stopped just short of hitting his

car, Miguel B. jumped out of the car and told him that defendant, who was sitting in the

passenger seat, had a gun. Deputy Scalise arrested defendant. Deputy Scalise

testified that he saw a comb- knife on the car floor in front of the passenger seat.

Officer Antonio Torres testified that he was assigned to investigate the incident.

When he arrived at the scene, he was given Miguel=s wallet and a black comb-knife

from one of the officers already at the scene.

Defendant presented no evidence. After closing arguments, the jury found

defendant guilty of aggravated kidnapping and not guilty of armed robbery.

During the sentencing hearing, the State introduced defendant=s prior admissions

of guilt to unlawful use of a weapon, unlawful possession of ammunition, aggravated

robbery, and robbery. The State also noted that defendant had been on probation for

robbery at the time he kidnaped Miguel B. Defendant presented several character

witnesses in mitigation.

After argument, the circuit court discussed each aggravating and mitigating factor

listed in sections 5-5-3.1 and 5-5-3.2 of the Unified Code of Corrections (730 ILCS 5/5-

5-3.1, 5-5-3.2 (West 2002)) and whether each factor was applicable to the case at bar.

In aggravation, the circuit court noted that defendant=s conduct threatened serious

harm, defendant had a prior criminal history, the imposed sentence was needed to deter

others from committing similar acts, and defendant was on probation when he

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committed the kidnapping. In mitigation, the court found that defendant=s imprisonment

would entail an excessive hardship for his four-year-old daughter.

Because of defendant's prior criminal history, the court denied defendant's

request to be placed on probation and sentenced him to an indeterminate period of time

in the Juvenile

Department of Corrections. In determining defendant's adult

sentence, the court noted that, under the EJJ, should defendant
violate the terms of his juvenile sentence, the adult sentence

would kick in and, because defendant was convicted of a Class X

felony, he would be facing a minimum of six years, which the

court characterized as a "substantial" amount of time. In order

to keep defendant "on the straight and narrow," the court imposed

a 20-year adult sentence, but expressed the hope that that

sentence would never be executed. This appeal followed.

ANALYSIS

I. Sex Offender Registry

Defendant first argues that because there was no evidence of

sexual conduct or motive in connection with his kidnapping Miguel

B., requiring him to register as a sex offender violates his

rights to due process, privacy, and equal protection under both

the United States and Illinois Constitutions. Defendant asks

this court to find the Registration Act unconstitutional as

applied to him.

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The State concedes that there was no actual "sexual"

evidence presented in this case, but maintains that the

legislature had a rational basis for including aggravated

kidnapping of a minor as a triggering offense under the

Registration Act. Relying on People v. Fuller, 324 Ill. App. 3d

728 (2001), the State argues that the offense of aggravating

kidnapping of a minor can be a "precursor" to other offenses

which involve the sexual abuse or exploitation of a child.

It is well established that "[a]ll statutes are presumed to be constitutional, and the

burden of rebutting that presumption is on the party challenging the validity of the

statute to demonstrate clearly a constitutional violation." People v. Greco, 204 Ill. 2d

400, 406 (2003), citing People v. Sypien, 198 Ill. 2d 334, 338 (2001). This presumption

means that, if possible, we must construe the statute "so as to affirm its constitutionality

and validity." Greco, 204 Ill. 2d at 406, citing People v. Fuller, 187 Ill. 2d 1, 10 (1999).

Whether a statute is constitutional is a question of law that we review de novo. People

v. Malchow, 193 Ill. 2d 413, 418 (2000).

In this case, defendant has chosen to attack the

Registration Act on an "as applied" basis as violative of his

rights to procedural and substantive due process, privacy, and

equal protection of the laws. Our supreme court, however, has

rejected the argument that the Registration Act implicates the

right to privacy under either the United States or Illinois

Constitution. See People v. Cornelius, 213 Ill. 2d 178, 196-97

(2004); Malchow, 193 Ill. 2d at 425-26. Moreover, we have found

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that a defendant challenging whether he should have to register

as a sex offender is making a due process and not an equal

protection claim. See People v. Johnson, No. 1-04-1292, slip op.

at 9 (January 31, 2006) (finding defendant's challenge was "more

a due process claim than an equal protection claim" where he was

not "contend[ing] that the classification of some individuals as

sexual offenders is unconstitutional" "[r]ather, *** that he does

not belong within the classification"). Even though the

"standards used to determine the constitutionality of a statute

under equal protection and due process grounds are identical"

(see Johnson, slip op. at 9, citing People v. Williams, 358 Ill.

App. 3d 363, 366 (2005)), we will confine our discussion to

defendant's substantive and procedural due process arguments.

A. Substantive Due Process

To withstand a due process challenge under the rational
1
basis test, the statute in question needs to bear only a
rational relation to a legitimate legislative interest and be

1
Though defendant makes a perfunctory argument that this

Court should apply strict scrutiny, every court that has

addressed the constitutionality of the Registration Act has found

that the Act does not implicate a fundamental right and, thus,

has applied a rationality level of review. See Johnson, slip op.

at 9-10; Fuller, 324 Ill. App. 3d at 731-32; People v. Malchow,

306 Ill. App. 3d 665 (1999).

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neither arbitrary nor discriminatory. People v. Johnson, slip

op. at 10. In applying this test, the court first identifies the

public interest the statute is intended to protect, examines

whether the statute bears a reasonable relationship to that

interest, and then determines whether the method used to protect

or further that interest is reasonable. People v. Lindner, 127

Ill. 2d 174, 180 (1989).

The Registration Act was enacted to protect children from

sexual assault and sexual abuse by providing the police and

public with information regarding the whereabouts of convicted
2
sex offenders. People v. Adams, 144 Ill. 2d 381, 386 (1991);

Johnson, slip op. at 10, citing People v. Logan, 302 Ill. App. 3d

319, 328-29 (1998); Fuller, 324 Ill. App. 3d at 731 ("The

Registration Act was enacted by the Illinois Legislature 'to

create an additional method of protection for children from the

increasing incidence of sexual assault and sexual abuse. (84th

2
Under the Registration Act, a "sex offender" is defined as

anyone (other than a parent of the victim) who commits the

offense of aggravated kidnapping of a minor. See 730 ILCS

150/2(B)(1.5) (West 2002).

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Ill. Gen. Assem., House Proceedings, June 23, 1986, at 208.) The

Registration Act was designed to aid law enforcement agencies

***' by making 'the habitual offender's address *** readily

available to law enforcement agencies.' [Citation.]").

Defendant does not question the legitimacy of the

Registration Act's purposes (i.e., protecting children from sex

crimes and aiding law enforcement by letting them know where

sexual offenders live). He only questions whether, in this case,

those purposes are furthered by requiring him to register as a

sex offender; in other words, under the rational basis test,

whether the method used to protect or further the legislature's

interests (requiring him to register as a sex offender) is

reasonable. See Lindner, 127 Ill. 2d at 180. Two panels of this

court have addressed this very issue but have come to two
3
divergent results.

3
In People v. Hall, our supreme court had granted a

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petition for leave to appeal in a case where the defendant was

arguing that the Registration Act was "unconstitutional as

applied to him because there [was] no evidence that his offense

[of aggravated kidnapping of a minor] was sexually motivated."

See People v. Hall, 217 Ill. 2d 324 (2005). The court did not

address the issue, however, and decided the case on a procedural

ground. See Hall, 217 Ill. 2d 324.

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In Fuller, the defendant stole a van with two children in

the back. Fuller, 324 Ill. App. 3d at 730. Instead of

immediately releasing the children, the defendant drove around,

stopping twice to view Christmas lights. Fuller, 324 Ill. App.

3d at 730. When the van was stopped at a light, the children

opened the van's unlocked door and ran to a nearby service

station. Fuller, 324 Ill. App. 3d at 730. At no point did

defendant touch the children, though he spoke briefly with them

in response to their questions. Fuller, 324 Ill. App. 3d at 730.

Defendant was convicted of aggravated kidnapping and ordered to

register as a sex offender. Fuller, 324 Ill. App. 3d at 729-30.

On appeal, the defendant argued "that section 2(B)[(105)] of

the Registration Act violat[ed] due process because the

definition of sex offender is overly broad" and "there is no

rational relationship between the offense of aggravated kidnaping

and the legislative intent of the Registration Act." Fuller, 324

Ill. App. 3d at 731. The court rejected defendant's arguments.

Finding that the purpose of the Registration Act was to "help law

enforcement protect children from sexual assault and sexual

abuse," the court found a rational connection between the offense

of aggravated kidnapping and that purpose. Fuller, 324 Ill. App.

3d at 732. The court went on to note:

"It is particularly disingenuous for the defendant to

argue that there is no rational relationship between

the kidnaping of a child and the purpose of protecting

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children from the increasing incidence of sexual

assault and sexual abuse. The most obvious connection

between the offenses listed in section 2(B)(1.5) and

the purpose of the Registration Act is that kidnaping

or unlawful restraint of a minor is often a precursor

offense to juvenile pimping or exploitation of a child,

which are, indisputably, within the purview of the

Registration Act's purpose." Fuller, 324 Ill. App. 3d

at 733.

The court also noted that when asked what he had planned to do

with the children, the defendant " 'stated he was going to find a

hotel room and ask the girl if she had any friends.' " Fuller,

324 Ill. App. 3d at 733.

Recently, a different division of this court disagreed with

Fuller. See People v. Johnson, No. 1-04-1292 (January 31, 2006).

In Johnson, the defendant and four other men kidnaped a 20-

month-old girl in order to collect a ransom from her grandfather.

Johnson, slip op. at 1. After defendant pleaded guilty to

aggravated kidnapping, he was sentenced to 17 years in the

Illinois Department of Corrections and ordered to register as a

sex offender. Johnson, slip op. at 1-2. On appeal, the

defendant argued that the Registration Act was unconstitutional

as applied to him where his offense was not sexually motivated

and had no sexual purpose. Johnson, slip op. at 2-3.

A majority of the court agreed, noting that "[t]he record

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indicate[d] that defendant's offense of aggravated kidnaping was

not sexually motivated" and "[t]here were no allegations of any

kind that defendant or codefendants committed or attempted to

commit any sexual assault against the minor." Johnson, slip op.

at 11. Specifically, the court found:

"[T]here is no rational basis for requiring

defendant to register as a sex offender where he has no

history of committing sex offenses and his offense of

aggravated kidnaping was not sexually motivated and had no

sexual purpose. Consequently, defendant has met his burden

of establishing that the Registration Act, as applied to

him, violates his substantive due process rights under the

state and federal constitutions where his designation as a

sex offender bears no rational relationship to the State's

interest in protecting the public from convicted sex

offenders." Johnson, slip op. at 12. See State v. Reine,

No. 19157 (Ohio App. 2d Dist. 2003); State v. Robinson,

873 So. 2d 1205 (Fla. 2004); People v. Moi, 8 Misc. 3d

1012(A) (N.Y. County Ct.2005).

The majority distinguished Fuller by arguing that there was

evidence in that case that the crime was sexually motivated:

"The facts in Fuller indicated that the crime was

sexually motivated, as shown by the reviewing court's

following observations and comments:

'In defendant's own case, the arresting

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police officer testified that when the officer asked

defendant what he planned to do with the children,

defendant "stated he was going to find a hotel room and

ask the girl if she had any friends." This statement,

eerily suggestive of the nature of defendant's plans

for the children, in conjunction with defendant's

conduct in failing to release the children themselves,

supports the logical nexus between the act of kidnaping

a child and the very real possibility of subsequent

sexual exploitation of that child.'" Johnson, slip op.

at 11-12, quoting Fuller, 324 Ill. App. 3d at 733-34.

Justice Wolfson, however, dissented. Agreeing with Fuller's

"precursor" argument, he found that "[i]t is the nature of the

crime - kidnaping a child - that triggers the Registration Act

provisions." Johnson, slip op. at 14 (Wolfson, J., dissenting).

He went on to argue:

"It does not take much imagination to add to the

list of reprehensible acts an offender might commit.

Once an offender makes the decision to commit the

aggravated kidnaping of a child, there is a very real

possibility the child will become a victim of sexual

abuse. Our reports are filled with such cases.

In this case the crime was interrupted while it

was in progress. The child was being held in a stolen

van when the police arrived. The legislature has the

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authority to protect children from such an offender.

Requiring him to register his name and address with law

enforcement officials does not offend due process of

law." Johnson, slip op. at 15 (Wolfson, J.,

dissenting).

We agree with both the holding in Fuller and the views espoused

by Justice Wolfson in his dissent in Johnson.

The legislature clearly intended that individuals who commit

the offense of aggravated kidnapping of a minor register under

the act as a sex offender. We, like the Fuller court, believe

there to be a rational connection between the interests the

Registration Act seeks to further (protecting children and others

from sex offenders and aided law enforcement) and the method used

to protect or further those interests (in this case, making

kidnapers of children like defendant register as a sex offender),

regardless of whether there was any "sexual" evidence in a

particular case. See Fuller, 324 Ill. App. 3d at 733.

Though there is no evidence that defendant sexually

assaulted Miguel or that his motivation in kidnapping Miguel was

sexual in nature, we find that the legislature could rationally

conclude that kidnapers of children pose such a threat to

sexually assault those children as to warrant their inclusion in

the sex offender registry. See Johnson, slip op. at 15 (Wolfson,

J., dissenting); Fuller, 324 Ill. App. 3d at 733; State v. Brown,

273 Wis. 2d 785, 680 N.W.2d 833 (2004); but see Johnson, slip op.

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at 12, citing State v. Reine, No. 19157 (Ohio App. 2d Dist.2003);

State v. Robinson, 873 So. 2d 1205 (Fla. 2004); and People v.

Moi, 8 Misc. 3d 1012(A), 801 N.Y.S.2d 780 (N.Y. County Ct. 2005);

People v. Bell, 3 Misc. 3d 773, 778 N.Y.S.2d 837 (2003).

B. Procedural Due Process

Defendant also argues that the Registration Act violates his

right to procedural due process because the registration

requirement is automatic under the Act and there is no

opportunity to challenge that requirement.

An attack based upon procedural due process focuses upon the

specific procedures employed in a statute and whether that

statute provides both an opportunity to be heard at a meaningful

time and in a meaningful manner. See People v. R.G., 131 Ill. 2d

328, 353 (1989). In order to implicate this right, the defendant

must first show that the registration and notification statutes

at issue deprive him of a protected liberty or property interest.

See Logan, 302 Ill. App. 3d at 332.

Even assuming that the Registration Act implicates a

protected liberty or property interest (cf. People v. Stork, 305

Ill. App. 3d 714 (1999) (finding section 9.3 did not implicate

any protected liberty interests)), defendant had a meaningful

opportunity to be heard at trial (see In re J.R., 341 Ill. App.

3d at 784, 796-97 (2003); Logan, 302 Ill. App. 3d at 332-33).

As defendant points out, a sex offender is not permitted to

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live or be within 500 feet any school building or public park.

See 720 ILCS 5/11-9.3(a), (b), (b-5) (West 2002); 720 ILCS 5/11-

9.4 (a), (b), (b-5) (West 2002). Sex offenders are also not

permitted to "operate, manage, be employed by, volunteer at, be

associated with, or knowingly be present at any facility

providing programs or services exclusively directed towards"

minors. 720 ILCS 5/11-9.4(c) (West 2002).

However, defendant had the opportunity at his trial by jury

to challenge whether he committed aggravated kidnapping.

Defendant has not indicated what more process is "due." See In

re J.R., 341 Ill. App. 3d at 796-97; see also Connecticut

Department of Public Safety v. Doe, 538 U.S. 1, 7-8 155 L. Ed.2d

98, 105, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003) (finding that

even if liberty interest is implicated by sex offender registry,

no need for further process than trial that had been provided).

II. Adult 20-year Sentence

Defendant next argues that the circuit court abused its discretion when it

imposed a 20-year adult sentence because the court had offered an 8-year sentence for

both the aggravated kidnapping and armed robbery during the pretrial Rule 402

conference (177 Ill. 2d R. 402) and defendant was acquitted of the latter charge; the

court had noted that the minimum sentence defendant was facing for committing a

Class X felony was "substantial and;" the court indicated it was imposing a 20-year

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sentence to ensure defendant would comply with his juvenile sentence.

Under the EJJ, the circuit court is required to impose both a juvenile sentence

and "an adult criminal sentence in accordance with the provisions of Chapter V of the

Unified Code of Corrections." 705 ILCS 405/5-810(4)(ii) (West 2002); In re Matthew M.,

335 Ill. App. 3d 276 (2002); see 730 ILCS 5/1-1-2 (West 2002) (stating the objectives in

fashioning a sentence should be to "(a) prescribe sanctions proportionate to the

seriousness of the offenses and permit the recognition of differences in rehabilitation

possibilities among individual offenders; (b) forbid and prevent the commission of

offenses; (c) prevent arbitrary or oppressive treatment of persons adjudicated offenders

or delinquents; and (d) restore offenders to useful citizenship"). The "adult sentence"

does not kick in unless and until the defendant violates the provisions of his juvenile

sentence. 705 ILCS 405/5-810(4)(ii) (West 2002).

Initially, though not raised by the parties, we question whether defendant has

standing to complain about the conditional adult sentence imposed by the circuit court.

See In re J.W., 346 Ill. App. 3d 1, 15 (2004) (finding the defendant's constitutional

challenge to the revocation of the stay provision was "premature until a petition to

revoke the stay is filed"). As noted above, that adult sentence is automatically stayed

and will not be executed unless defendant violates the terms of his juvenile sentence.

See 705 ILCS 405/5-810(4)(ii) (West 2002). Thus, defendant has it within his own

power to determine whether the adult sentence will kick in.

Assuming, for the sake of argument, that defendant has standing, we find that

the circuit court did not abuse its discretion when it imposed the 20-year adult sentence.

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As defendant notes, because aggravated kidnapping is a Class X felony (720 ILCS

5/10-2(b) (West 2002)), he was facing no less than 6 years and no more that 30 years

in prison (730 ILCS 5/5-8-1(a)(3) (West 2002)). In fashioning the sentence, the circuit

court painstakingly discussed each statutory aggravating and mitigating factor and

whether any of those factors were applicable.

First, the 20-year sentence that the circuit court imposed, being within the

statutory range, is presumed proper. See People v. Malin, 359 Ill. App. 3d 257, 264-65

(2005). Second, though the circuit court noted that the minimum sentence for a Class

X felony was "substantial," the court in no way indicated that the minimum sentence

was the appropriate sentence for defendant. Nor does defendant cite any case where

such a comment has been held to lock the circuit court into imposing that sentence.

Third, though the 20-year sentence was intended to deter defendant from violating his

juvenile sentence, defendant cites no case where the use of the carrot/stick approach to

sentencing has been found to be improper, much less an abuse of discretion.

Attempting to deter the individual from committing further crimes is as much an

appropriate sentencing objective as is restoring him to useful citizenship. 730 ILCS 5/1-

1-2 (a) through (d) (West 2002).

In light of defendant=s prior criminal history, including the fact that he was on

probation for robbery when he kidnaped Miguel B., we find that the 20-year adult

sentence was neither excessive nor an abuse of discretion.

Affirmed.

GREIMAN and MURPHY, JJ., concur.

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