People v. Owens , 431 Ill. Dec. 115 ( 2018 )

FILED
October 23, 2018
2018 IL App (4th) 170506 Carla Bender
4th District Appellate
NO. 4-17-0506 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
RANDELL L. OWENS ) 16CF347
Defendant-Appellant. )
) Honorable
) John M. Madonia,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Presiding Justice Harris and Justice Knecht concurred in the judgment and
opinion.
OPINION
¶1 In April 2016, the State charged defendant, Randell L. Owens, with failure to
register as a sex offender under the Sex Offender Registration Act (Act). 730 ILCS 150/3(a)
(West 2016). In April 2017, defendant filed a pro se motion to dismiss, arguing that the double
jeopardy clause and the due process clause barred this prosecution. The trial court denied his
motion.
¶2 Defendant appeals, arguing (1) the Act subjects him to double jeopardy,
(2) collateral estoppel bars the State’s prosecution for his failure to register as a sex offender, and
(3) the Act creates an unconstitutional mandatory presumption. We disagree and affirm.
¶3 I. BACKGROUND
¶4 A. The Underlying Conviction
¶5 In September 1999, defendant was convicted of criminal sexual assault. 720 ILCS
5/12-13 (West 1998). This conviction required defendant to register as a sex offender. 730 ILCS
150/2(B)(1), 3(a) (West 2016).
¶6 B. Defendant’s Alleged Failure to Register
¶7 In April 2016, the State charged defendant with failure to register as a sex
offender under the Act. 730 ILCS 150/3(a) (West 2016). In April 2017, defendant filed a pro se
motion to dismiss, arguing that the Act violated the due process clause of the fourteenth
amendment and the double jeopardy clause of the fifth amendment. U.S. Const., amends. V,
XIV. Likewise, defendant argued that the Act violated the due process clause and the double
jeopardy clause of the Illinois Constitution. Ill. Const. 1970, art. I, §§ 2, 10.
¶8 In June 2017, the trial court denied defendant’s motion to dismiss. Later that
month, pursuant to Illinois Supreme Court Rule 604(f), defendant filed a motion for an
interlocutory appeal. Ill. S. Ct. R. 604(f) (eff. July 1, 2017) (“The defendant may appeal to the
Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former
jeopardy.”).
¶9 This appeal followed.
¶ 10 II. ANALYSIS
¶ 11 Defendant appeals, arguing (1) the Act subjects him to double jeopardy,
(2) collateral estoppel bars the State’s prosecution for his failure to register as a sex offender, and
(3) the Act creates an unconstitutional mandatory presumption. We address these issues in turn.
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¶ 12 A. Double Jeopardy
¶ 13 Defendant argues that the Act, which enacts a punishment for failing to register as
a sex offender, subjects him to double jeopardy. We disagree, concluding that defendant’s
prosecution for failure to register as a sex offender arises from a different criminal act.
¶ 14 1. The Applicable Law
¶ 15 The fifth amendment to the United States Constitution, made applicable to the
states via the fourteenth amendment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The Illinois
Constitution also provides that “[n]o person shall be *** twice put in jeopardy for the same
offense.” Ill. Const. 1970, art. I, § 10. The double jeopardy clause of our state constitution is to
be construed in the same manner as the double jeopardy clause of the federal constitution. People
v. Staple, 2016 IL App (4th) 160061, ¶ 13, 68 N.E.3d 1004.
¶ 16 The double jeopardy clause proscribes (1) a second prosecution for the same
offense following an acquittal, (2) a second prosecution for the same offense following a
conviction, and (3) multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493,
498 (1984). Registering as a sex offender is not a punishment. People v. Cardona, 2013 IL
114076, ¶ 24, 986 N.E.2d 66; People v. McArthur, 2018 IL App (1st) 150626, ¶¶ 54-55; see
Joanna Wells, Community Notification Provisions for Sex Offenders: Not Punishment for Ex
Post Facto and Double Jeopardy Purposes, 22 S. Ill. U. L.J. 243, 266-67 (1997).
¶ 17 The application of the double jeopardy clause often turns on whether there were
multiple acts or a single act. People v. Sienkiewicz, 208 Ill. 2d 1, 6, 802 N.E.2d 767, 771 (2003).
The definition of an “act” is “any overt or outward manifestation which will support a different
offense.” People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977). “[I]f the
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prosecutions are predicated on different criminal acts, then the prohibition against double
jeopardy is not violated.” Sienkiewicz, 208 Ill. 2d at 6.
¶ 18 However, if there was only a single physical act, then a court must apply the same
elements test to determine whether multiple prosecutions violate the double jeopardy clause. Id.Under the same elements test, if each crime requires proof of a fact not required by the other,
then multiple prosecutions do not violate the double jeopardy clause. Id. When neither the facts
nor the credibility of the witnesses are at issue, the trial court’s ruling on a motion to dismiss for
double jeopardy grounds is a question of law reviewed de novo. People v. Ventsias, 2014 IL App
(3d) 130275, ¶ 10, 13 N.E.3d 825.
¶ 19 The Criminal Code of 1961 (Code), as it existed in 1999, defined criminal sexual
assault as follows:
“The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of
force; or
(2) commits an act of sexual penetration and the accused knew that the
victim was unable to understand the nature of the act or was unable to give
knowing consent; or
(3) commits an act of sexual penetration with a victim who was under 18
years of age when the act was committed and the accused was a family member;
or
(4) commits an act of sexual penetration with a victim who was at least 13
years of age but under 18 years of age when the act was committed and the
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accused was 17 years of age or over and held a position of trust, authority or
supervision in relation to the victim.” 720 ILCS 5/12-13 (West 1998).
¶ 20 The definition of a sex offender includes an individual convicted of criminal
sexual assault. 730 ILCS 150/2(A)(1)(a), (B)(1) (West 2016). The Act mandates that “[a] sex
offender *** shall *** register in person and provide accurate information as required by the
Department of State Police.” Id. § 3(a). The Act further states that “[a]ny person who is required
to register under this Article who violates any of the provisions of this Article *** is guilty of a
*** felony.” Id. § 10(a).
¶ 21 2. This Case
¶ 22 Defendant’s double jeopardy argument fails because the State is prosecuting him
for a different criminal act. Sienkiewicz, 208 Ill. 2d at 6. The State originally charged defendant
with criminal sexual assault of which he was convicted. That charge required proof that
defendant committed sexual penetration under the circumstances set forth in the Code. 720 ILCS
5/12-13 (West 1998). Defendant’s conviction required him to register as a sex offender. 730
ILCS 150/2(B)(1), 3(a) (West 2016). The State is now prosecuting defendant for his alleged
failure to register. Id. § 10(a). Obviously, failing to register is a completely different act than
sexual penetration. Compare 720 ILCS 5/12-13 (West 1998), with 730 ILCS 150/3 (West 2016).
Likewise, being a sex offender is a status rather than an act. See People v. Coats, 2018 IL
121926, ¶ 27 (“A felon’s status is not an ‘act’ but, rather, a state of being. To clarify, a
defendant’s status is not factored into *** whether a defendant’s conduct consists of one act or
several acts.”). Accordingly, defendant’s double jeopardy argument is without merit.
Sienkiewicz, 208 Ill. 2d at 6.
¶ 23 B. Collateral Estoppel
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¶ 24 Defendant further argues that collateral estoppel bars a prosecution for failure to
register as a sex offender. We disagree.
¶ 25 The doctrine of collateral estoppel, in the criminal context, is a component of the
double jeopardy clause. People v. Fort, 2017 IL 118966, ¶ 34, 88 N.E.3d 718. This doctrine
holds that an issue raised and decided by a court of competent jurisdiction may not be relitigated
in a later action between the same parties in the same or a different cause of action. People v.
Krstic, 292 Ill. App. 3d 720, 723, 686 N.E.2d 692, 694 (1997). Collateral estoppel applies when
(1) the issue decided in the prior adjudication is identical to the one present in the suit in
question, (2) there was a judgment on the merits in the prior adjudication, and (3) the party
against whom estoppel is asserted was a party or in privity with a party to the prior adjudication.
People v. Brown, 2017 IL App (1st) 160025, ¶ 27, 88 N.E.3d 31. The applicability of the
collateral estoppel doctrine is a question of law reviewed de novo. People v. Christian, 2016 IL
App (1st) 140030, ¶ 80, 50 N.E.3d 1157.
¶ 26 Simply put, the issue decided in defendant’s conviction for criminal sexual assault
is not identical to the issue of whether he failed to register. In defendant’s prosecution for
criminal sexual assault, the State was required to prove that defendant committed sexual
penetration under the circumstances set forth in the Code. 720 ILCS 5/12-13 (West 1998). In the
present case, the State will be required to prove that defendant, as a sex offender, failed to
register as required under the Act. 730 ILCS 150/2(B)(1), 3(a) (West 2016). The State need not
and should not relitigate the facts of defendant’s underlying conviction. Accordingly, collateral
estoppel does not apply to this case.
¶ 27 C. Mandatory Presumption
¶ 28 Last, defendant argues that the Act is unconstitutional because it creates a
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mandatory presumption that violates the due process clause and the double jeopardy clause. We
disagree.
¶ 29 1. The Applicable Law
¶ 30 The double jeopardy clause states that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The due process
clause provides that no state shall deprive any person of “life, liberty, or property, without due
process of law.” U.S. Const., amend XIV. Our state constitution provides that “[n]o person shall
be deprived of life, liberty or property without due process of law” and that no person shall be
“twice put in jeopardy for the same offense.” Ill. Const. 1970, art. I., §§ 2, 10.
¶ 31 A presumption is a legal device that either permits or requires the trier of fact to
assume the existence of an ultimate fact after establishing certain predicate facts. People v.
Woodrum, 223 Ill. 2d 286, 308, 860 N.E.2d 259, 274 (2006). A permissive presumption allows,
but does not require, the trier of fact to infer the existence of the ultimate fact upon proof of the
predicate fact without placing a burden on the defendant. Id. The fact finder is free to accept or
reject a permissive presumption. Id. A mandatory presumption, however, requires the fact finder
to accept the presumption. Id. Mandatory presumptions are per se unconstitutional. Id. at 309.
¶ 32 Courts presume that a law is constitutional, and the party challenging the law
bears the burden of demonstrating its invalidity. People v. Pollard, 2016 IL App (5th) 130514,
¶ 24, 54 N.E.3d 234. If it can be reasonably done, a court has a duty to construe a statute in a
manner that upholds its validity and constitutionality. Id. If a statute’s construction is doubtful, a
court should resolve that doubt in favor of the statute’s validity. Id. Whether a statute is
constitutional is a legal question that a court reviews de novo. People v. Mosley, 2015 IL 115872,
¶ 22, 33 N.E.3d 137.
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¶ 33 2. Our Jurisdiction
¶ 34 The State concedes that we have jurisdiction to review defendant’s mandatory
presumption argument under the double jeopardy clause, but argues that we do not have
jurisdiction to review defendant’s mandatory presumption argument under the due process
clause. As such, before reaching the merits of defendant’s arguments, we first address our
jurisdiction. People v. Vara, 2018 IL 121823, ¶ 12.
¶ 35 The Illinois Constitution, in pertinent part, provides for our jurisdiction as
follows:
“Appeals from final judgments of a Circuit Court are a matter of right to
the Appellate Court ***. The Supreme Court may provide by rule for appeals to
the Appellate Court from other than final judgments of Circuit Courts. The
Appellate Court may exercise original jurisdiction when necessary to the
complete determination of any case on review.” Ill. Const. 1970, art. VI, § 6.
¶ 36 Illinois Supreme Court Rule 604(f) (eff. July 1, 2017) states that “[t]he defendant
may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on
grounds of former jeopardy.” In People v. Griffith, 404 Ill. App. 3d 1072, 1087, 936 N.E.2d
1174, 1188 (2010), the First District stated that the plain language of Rule 604(f) grants
interlocutory review only to double jeopardy claims. Thus, the First District concluded that it did
not have jurisdiction to review defendant’s due process claim that he included in his
interlocutory appeal. Id. However, in People v. Hobbs, 301 Ill. App. 3d 581, 590, 703 N.E.2d
943, 950 (1998), this court reasoned that, in the interest of judicial efficiency, it had
supplemental jurisdiction to consider the defendant’s due process claim that he included in his
Rule 604(f) interlocutory appeal.
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¶ 37 In a case such as this, in which defendant raises identical arguments under both
the due process clause and the double jeopardy clause, we conclude that it is in the interest of
judicial efficiency to rule on both arguments. Accordingly, in conjunction with Illinois Supreme
Court Rule 604(f) (eff. July 1, 2017), we will exercise supplemental jurisdiction to completely
adjudicate this matter. Hobbs, 301 Ill. App. 3d at 590-91.
¶ 38 In the alternative, this court has original jurisdiction over defendant’s due process
argument. Illinois Supreme Court Rule 604(f) (eff. July 1, 2017) states that a “defendant may
appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds
of former jeopardy.” As such, defendant’s double jeopardy argument is properly before this
court. Our state constitution further provides that “The Appellate Court may exercise original
jurisdiction when necessary to the complete determination of any case on review.” Ill. Const.
1970, art. VI, § 6. This constitutional provision, in conjunction with Rule 604(f), gives this court
jurisdiction to consider defendant’s due process claim. Id.; Ill. S. Ct. R. 604(f) (eff. July 1, 2017).
Accordingly, we turn to the merits of defendant’s arguments.
¶ 39 3. The Merits of Defendant’s Argument
¶ 40 The Act contains no provision that permits or requires the trier of fact to assume
the existence of any ultimate fact. Woodrum, 223 Ill. 2d at 308. Instead, the Act simply states
that “[a] sex offender *** shall *** register” and that “[a]ny person who is required to register
under this Article who violates any of the provisions of this Article *** is guilty of a ***
felony.” 730 ILCS 150/3, 10(a) (West 2016). As such, there is no presumption in the Act. Thus,
defendant’s argument is without merit.
¶ 41 III. CONCLUSION
¶ 42 For the foregoing reasons, we affirm the trial court’s order.
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¶ 43 Affirmed.
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