SIXTH DIVISION

February 10, 2017

No. 1-14-3150

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 14 CR 11336 ) JEROME BINGHAM, ) Honorable ) Bridget Jane Hughes, Defendant-Appellant. ) Judge Presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in September 2014, the trial court convicted defendant, Jerome

Bingham, of theft, which was elevated to a Class 4 felony due to a previous retail theft

conviction, and sentenced him to three years’ imprisonment. Defendant had a prior conviction in

1983 for attempted criminal sexual assault for which he had not been required to register as a sex

offender because the conviction occurred prior to enactment of the Sex Offender Registration

Act (Act) (730 ILCS 150/1 et seq. (West 2012)), in 1986. Under section 3(c)(2.1) of the Act (730

ILCS 150/3(c)(2.1) (West 2012)), as amended in 2011, defendant’s 2014 felony theft conviction

in this case required him to register as a sex offender for the 1983 attempted criminal sexual

assault. On appeal, defendant contends (1) the Act is unconstitutional as applied to him; (2) the

Act violates the ex post facto clauses of the United States and Illinois Constitutions; (3) his theft

conviction was improperly elevated from a Class A misdemeanor to a Class 4 felony, and the

trial court improperly imposed an enhanced three-year sentence for the Class 4 felony

conviction; and (4) the trial court erroneously imposed a DNA analysis fee and failed to apply

the $5 per day credit for presentence incarceration to several charges that qualify as fines. We No. 1-14-3150

affirm defendant’s conviction, three-year sentence, and the requirement that he register as a sex

offender. We vacate his DNA analysis fee, credit him with $65 as against his fines, and direct the

clerk of the circuit court to modify the fines and fees order accordingly.

¶2 I. Defendant’s Theft Conviction

Defendant was charged with theft after a surveillance camera recorded him taking several pallets

from the unfenced yard of a Kmart in Norridge, Illinois at approximately 6:30 p.m. on May 3,

2014. The indictment alleged that defendant committed theft “in that he, knowingly obtained or

exerted unauthorized control over property, to wit: pallets, of a value less than five hundred

dollars, the property of Kmart, intending to deprive Kmart, permanently of the use or benefit of

said property, and the defendant has been previously convicted of the offense [of] retail theft

under case number 00125524901, in violation of Chapter 720 Act 5 section 16-1(a)(1) of the

Illinois Compiled Statutes 1992 as amended.”

¶3 The cause proceeded to a one-day trial on September 11, 2014. At trial, Ali Sahtout

testified he works as a security guard at the Kmart at 4201 North Harlem Avenue in Norridge. At

approximately 6:30 p.m. on May 3, 2014, Mr. Sahtout was in the Kmart security office

monitoring the video cameras when he saw defendant drive his truck to the receiving area in the

back of the store, where storage units and pallets belonging to Kmart are located. Defendant

exited his truck, grabbed a total of six pallets (two pallets at a time), and put them on the back of

his truck. Then he drove away. The pallets were valued at $12 each. Defendant was never given

permission to take the pallets.

¶4 Mr. Sahtout contacted the Norridge police department. About five minutes later, the

police called him back and asked him to come to a location a half block from the receiving area

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of the store. Mr. Sahtout went there and saw that the officers had pulled defendant over and

placed him in a squad car.

¶5 Mr. Sahtout identified People’s exhibit No. 1 as the video depicting defendant taking the

pallets and putting them in the back of his truck. Mr. Sahtout identified People’s exhibits Nos. 2

through 5 as photographs truly depicting how defendant’s truck appeared on May 3, 2014.

¶6 Officer Peter Giannakopoulos of the Norridge police department testified that at

approximately 6:30 p.m. on May 3, 2014, he was patrolling the 4200 block of Harlem Avenue.

He was dispatched to the Kmart store a half block away because there was a report that an

African-American man in a black pickup truck with registration plate 1129940 B had taken some

pallets from the rear of the property.

¶7 Officer Giannakopoulos arrived at the Kmart receiving area about two minutes later, and

he saw a black pickup truck with registration plate 1129940 B leaving the area. Defendant was

the driver. The officer curbed the truck and saw several pallets on the truck’s open bed.

¶8 Officer Giannakopoulos asked Mr. Sahtout to come to his location to make an

identification. Mr. Sahtout came and identified defendant as the person who had taken the pallets

from the rear of the Kmart. Defendant was placed under arrest.

¶9 Following the testimony of Officer Giannakopoulos, the parties stipulated that defendant

had a previous conviction for retail theft in case No. 00125524901. The State entered its exhibits

into evidence, and the trial court viewed the video depicting defendant taking the pallets from the

Kmart receiving area. The State then rested.

¶ 10 Defendant testified he was a retired truck driver, who now works as a metal scrapper, and

that, about six months before the incident at issue, he had a conversation with a person who was

driving a forklift in the back of the Kmart at 4201 North Harlem Avenue. The forklift driver told

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defendant that it would be okay for him to take broken pallets from behind the Kmart for

scrapping purposes. Pursuant to this conversation with the forklift driver, defendant took several

broken pallets from the Kmart receiving area on May 3 and was subsequently pulled over by the

police. Defendant testified he believed he had permission from the forklift driver to take the

broken pallets, and therefore he did not believe he was guilty of theft.

¶ 11 On September 11, 2014, following defendant’s testimony, the trial court convicted

defendant of theft. The cause proceeded to sentencing. The presentence investigation report (PSI)

detailed defendant’s prior criminal history, including attempted criminal sexual assault in 1983,

possession of a controlled substance in 1993 and 1996, violation of an order of protection in

1999, retail theft of less than $150 in 1999, possession of a stolen vehicle in 2000, two retail

thefts in 2000, theft in 2004, and possession of a controlled substance in 2005 and 2007. At

sentencing, the State presented evidence that on May 2, 2014 (the day before the theft of which

he was convicted here), defendant had stolen additional pallets from the Kmart located at 4201

North Harlem Avenue.

¶ 12 The trial court sentenced defendant to three years’ imprisonment on his theft conviction,

which was elevated to a Class 4 felony due to his previous conviction for retail theft, plus $699

in various fines, fees, and costs.

¶ 13 II. Defendant’s Sex Offender Registration

¶ 14 The PSI indicated that defendant was convicted of attempted criminal sexual assault in

1983 and sentenced to four years’ imprisonment. At the time of defendant’s offense in 1983, he

was not required to register as a sex offender because the Act had not yet been enacted. The Act

was subsequently enacted in 1986 and amended in 2011 to provide that “[a] sex offender or

sexual predator, who has never previously been required to register under this Act, has a duty to

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register if the person has been convicted of any felony offense after July 1, 2011.” 730 ILCS

150/3(c)(2.1) (West 2012). Defendant’s 2014 felony conviction for theft now requires him to

register as a sex offender for his commission of attempted criminal sexual assault in 1983.

¶ 15 III. Defendant’s Appeal

¶ 16 First, defendant contends the Act is unconstitutional as applied to him. Specifically,

defendant contends his history of nonviolent and nonsexual offenses (since his 1983 conviction

for attempted criminal sexual assault) and the circumstances of the 2014 felony theft of six

pallets from the Kmart do not indicate he is at risk of committing another sex offense. Therefore,

defendant argues the Act violates his substantive due process rights by requiring him to register

as a sex offender because on these facts there is no reasonable relationship between the

registration requirement and the Act’s purpose of protecting the public from sex offenders.

¶ 17 A statute is presumed constitutional, and defendant, as the party challenging the statute,

bears the burden of demonstrating its invalidity. People v. Malchow,

(2000).

Courts have the duty to uphold the constitutionality of a statute whenever reasonably possible,

resolving any doubts in favor of its validity. People v. Patterson,

. We

review de novo the constitutionality of a statute.

¶ 18 “When confronted with a claim that a statute violates the due process guarantees of the

United States and Illinois Constitutions, courts first must determine the nature of the right

purportedly infringed upon by the statute. [Citation.] Where the statute does not affect a

fundamental constitutional right, the test for determining whether the statute complies with

substantive due process is the rational basis test. [Citation.] To satisfy this test, a statute need

only bear a rational relationship to the purpose the legislature sought to accomplish in enacting

the statute. [Citation.] Pursuant to this test, a statute will be upheld if it bears a reasonable

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relationship to a public interest to be served, and the means adopted are a reasonable method of

accomplishing the desired objective.” (Internal quotation marks omitted). In re J.W.,

(2003). The rational basis test is highly deferential; if there is any conceivable set of

facts showing a rational basis for the statute, it will be upheld. People v. Johnson,

(2007).

¶ 19 The parties make no argument that the Act affects a fundamental right; accordingly, we

analyze the statute using the rational basis test. See In re J.W.,

(analyzing the

constitutionality of the Act using the rational basis test).

¶ 20 Initially, the State argues we lack a sufficient evidentiary record to review defendant’s

“as-applied” constitutional challenge, in the absence of an evidentiary hearing and findings of

fact. In support, the State cites People v. Mosley,

, which held that a court is not

capable of making an “as-applied” determination of constitutionality where there has been no

evidentiary hearing and no findings of fact, and that in the absence of such an evidentiary

hearing and findings of fact, the constitutional challenge must be facial. Id. ¶¶ 47, 49. The

requirement of an evidentiary hearing and findings of fact for an “as-applied” challenge exists

because unlike a facial challenge that “requires demonstrating that a statute is unconstitutional

under any set of facts, an as-applied challenge requires demonstrating that the statute is

unconstitutional under the particular circumstances of the challenging party.” People v. Gray,

. “Because as-applied challenges are dependent on the particular

facts, it is paramount that the record be sufficiently developed in terms of those facts and

circumstances for purposes of appellate review.” (Internal quotation marks omitted).

¶ 21 In the present case, the particular circumstances of defendant’s as-applied, due process

challenge centers around whether the Act’s requirement that he register as a sex offender for

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committing a 2014 felony theft more than 30 years after his 1983 conviction for attempted

criminal sexual assault is rationally related to the Act’s purpose of protecting the public from sex

offenders, where his criminal background (other than the 1983 conviction) shows no other

violent or sexual offenses. The record on appeal is sufficient for us to review defendant’s as-

applied challenge to the constitutionality of the Act, as the record contains the transcript of the

bench trial at which the parties thoroughly explored the circumstances of the 2014 felony theft

offense of which he ultimately was convicted, as well as the transcript of the sentencing hearing

that explored his criminal history, including his 1983 attempted criminal sexual assault. The

appellate record also contains the PSI, which further discussed defendant’s criminal history,

including his 1983 conviction for attempted criminal sexual assault. The record on appeal is

sufficient to enable us to consider whether the Act, as applied to the particular facts of

defendant’s case, is unconstitutional. See e.g., Gray,

(holding

that the evidentiary record established at trial was sufficient for appellate review of defendant’s

as-applied challenge). We proceed to address defendant’s as-applied, due process argument

which, as discussed, is reviewed here under the rational basis test.

¶ 22 Under the rational basis test, “our inquiry is twofold: we must determine whether there is

a legitimate state interest behind the legislation, and if so, whether there is a reasonable

relationship between that interest and the means the legislature has chosen to pursue it.” Johnson,

.

¶ 23 Our supreme court has held that the purpose of the Act “is to aid law enforcement by

facilitating ready access to information about sex offenders and, therefore, to protect the public”

and that “[t]his is obviously a legitimate state interest.”

. Defendant does not dispute the

legitimacy of the State’s interest in protecting the public from sex offenders. Rather, defendant

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argues that, as applied to him, the Act’s requirement that he register as a sex offender for

committing the “minor” 2014 felony theft after having committed the attempted criminal sexual

assault in 1983 bears no reasonable relationship to the Act’s purpose, where his history of

nonviolent and nonsexual offenses (other than the 1983 conviction) and the circumstances of the

2014 felony theft do not indicate he is at risk of committing another sex offense.

¶ 24 We disagree. Defendant’s lengthy criminal history from 1983 to 2014, including

attempted criminal sexual assault in 1983; possession of a controlled substance in 1993, 1996,

2005, and 2007; violation of an order of protection in 1999; retail theft in 1999 and 2000;

possession of a stolen vehicle in 2000; and theft in 2004, coupled with his felony conviction for

theft in this case in 2014, shows his general tendency to recidivate, i.e., to return to a habit of

criminal behavior. One of defendant’s prior criminal behaviors was for attempted criminal sexual

assault, which is currently defined as a sex offense under the Act. See 730 ILCS 150/2(B) (West

2012). Defendant’s sex offense was committed more than 30 years ago, in 1983, prior to the

enactment of the Act’s registration requirement, but his recent felony theft conviction in this case

came in 2014, after the Act’s enactment. Under section 3(c)(2.1) of the Act, as amended in 2011,

his 2014 felony theft conviction now requires him to register as a sex offender for committing

the 1983 attempted criminal sexual assault. Even though the 2014 felony theft was nonviolent

and nonsexual (“minor” according to defendant), it still exhibited (along with defendant’s other

crimes committed since 1983) his general tendency to return to his prior criminal behavior, and

as discussed, one of those prior criminal behaviors involved a sex offense. The legislature

reasonably could determine that where, as here, defendant has committed a sex offense in the

past for which he was not then required to register and has shown a recent, general tendency to

recidivate by committing a new felony since the amendment of the Act in 2011, he poses the

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potential threat of committing a new sex offense in the future. Such a threat is magnified in the

instant case, where defendant has committed no less than 11 crimes (six felonies and five

misdemeanors), in addition to the 2014 felony theft at issue here, since his attempted criminal

sexual assault in 1983. The Act’s requirement that defendant register as a sex offender for

committing the 2014 felony theft after having committed the 1983 attempted criminal sexual

assault is a reasonable method for accomplishing the desired legislative objective of protecting

the public from sex offenders. Accordingly, the Act as applied to defendant satisfies the rational

basis test and is constitutional, and therefore, defendant’s as-applied due process challenge to the

Act fails.

¶ 25 Next, defendant contends section 3(c)(2.1) of the Act violates the ex post facto clauses of

the United States and Illinois constitutions by imposing a new and ongoing punishment (the

registration requirement) for the attempted criminal sexual assault offense he committed more

than 30 years ago.

¶ 26 The ex post facto clauses in the United States and Illinois Constitutions prohibit the

retroactive application of laws inflicting greater punishment than the law in effect at the time a

crime was committed. People v. Fredericks,

. Whether a law

constitutes “punishment” or not hinges on whether the legislature intended the law to establish

civil proceedings or impose punishment.

Even where the legislative intent was to enact a civil

regulatory scheme instead of a punitive scheme, the law may violate the ex post facto clauses

when the clearest proof shows it is so punitive, either in purpose or effect, as to constitute

punishment.

¶ 27 The Illinois Supreme Court “has consistently held that the Act’s registration requirement

is not a punishment.” People ex rel. Birkett v. Konetski,

(2009) (citing In re

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J.W.,

; Malchow,

; and People v. Adams,

(1991)). Defendant argues that we should disregard this precedent and look to Kennedy v.

Mendoza-Martinez,

(1963), which sets forth the following seven factors to

determine whether an ostensibly civil statute has a punitive effect: (1) whether the sanction

involves an affirmative disability or restraint, (2) whether the sanction historically has been

regarded as punishment, (3) whether the sanction applies only on a finding of scienter, (4)

whether operation of the sanction promotes retribution and deterrence, (5) whether the behavior

to which the sanction applies is already a crime, (6) whether an alternative purpose to which the

sanction may rationally be connected is assignable to it, and (7) whether the sanction appears

excessive in relation to the alternative purpose assigned. Fredericks,

(applying Mendoza-Martinez factors).

¶ 28 Defendant contends that, applying the Mendoza-Martinez factors, we should find that the

registration requirement is a punishment and that the Act therefore violates the ex post facto

clauses by retroactively imposing the registration requirement upon him for a crime (attempted

criminal sexual assault) committed more than 30 years ago. “We, however, are bound by the

decisions of the Illinois Supreme Court” that have held that the registration requirement is not a

punishment and, thus, that the Act does not violate the ex post facto clauses. People v. Jenk,

, ¶ 26.

¶ 29 Further, we note that in considering an ex post facto challenge to the Sex Offender and

Child Murderer Community Notification Law (Notification Law) (730 ILCS 152/101 et seq.

(West 1998)), which requires the Illinois State Police to maintain a sex offender database to

identify sex offenders and make information about them available to certain specified persons,

the Illinois Supreme Court in Malchow expressly considered the Mendoza-Martinez factors.

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Malchow,

. The Illinois Supreme Court concluded that the Mendoza-

Martinez factors did not weigh in favor of a conclusion that the Notification Law constituted

punishment, and thus, the ex post facto claim failed.

.

¶ 30 In Fredericks, the appellate court considered an ex post facto argument regarding the Act

at issue here and examined the Mendoza-Martinez factors. The appellate court held that

Malchow’s analysis of the Mendoza-Martinez factors with regard to the Notification Law also

applies to the Act at issue here and concluded that the sex offender registration is not punishment

and, thus, that the Act does not violate the ex post facto clauses. Fredericks,

. We adhere to Fredericks and reject defendant’s ex post facto claim.

¶ 31 Next, defendant contends the trial court improperly elevated his theft conviction from a

Class A misdemeanor to a Class 4 felony and then improperly imposed an “enhanced” three-year

sentence on him as a Class 4 felony offender, meaning the court imposed a lengthier sentence

based on the higher classification of the offense. Section 16-1(b)(1) of the Criminal Code of

2012 provides that “[t]heft of property not from the person and not exceeding $500 in value is a

Class A misdemeanor.” 720 ILCS 5/16-1(b)(1) (West 2012). However, defendant here was

expressly charged by indictment with theft after having “been previously convicted of the

offense [of] retail theft.” Therefore, defendant’s theft conviction was elevated to a Class 4 felony

offense pursuant to section 16-1(b)(2) of the Criminal Code of 2012, which states in pertinent

part, “A person who has been convicted of theft of property not from the person and not

exceeding $500 in value who has been previously convicted of any type of theft *** is guilty of a

Class 4 felony.” 720 ILCS 5/16-1(b)(2) (West 2012). As a Class 4 felony offender, defendant

was subject to a one- to three-year term of imprisonment. See 730 ILCS 5/5-4.5-45(a) (West

2012).

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¶ 32 Defendant contends he should not have been given an enhanced three-year sentence as a

Class 4 felony offender because the State failed to comply with section 111-3(c) of the Code of

Criminal Procedure of 1963 (Code), which provides:

“When the State seeks an enhanced sentence because of a prior conviction, the charge

shall also state the intention to seek an enhanced sentence and shall state such prior

conviction so as to give notice to the defendant. However, the fact of such prior

conviction and the State’s intention to seek an enhanced sentence are not elements of the

offense and may not be disclosed to the jury during trial unless otherwise permitted by

issues properly raised during such trial. For the purposes of this Section, ‘enhanced

sentence’ means a sentence which is increased by a prior conviction from one

classification of offense to another higher level classification of offense set forth in

Section 5-4.5-10 of the Unified Code of Corrections (730 ILCS 5/5-4.5-10); it does not

include an increase in the sentence applied within the same level of classification of

offense.” 725 ILCS 5/111-3(c) (West 2012).

¶ 33 Defendant argues that the indictment failed to comply with section 111-3(c) because it

did not expressly state the intention to seek the enhanced three-year sentence for a Class 4 felony

and, thus, defendant contends we should reduce his theft conviction to a Class A misdemeanor

and remand his case for resentencing. The State counters that defendant has failed to show any

prejudice by the alleged defect in the indictment.

¶ 34 The timing of the challenge to the indictment determines whether defendant must show

he was prejudiced by the defect in the charging instrument. People v. Stephenson,

. “If an indictment or information is challenged in a pretrial motion, it must

strictly comply with the pleading requirements of section 111-3.” (Internal quotation marks

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omitted.)

However, if the defendant challenges the sufficiency of the charging instrument for

the first time on appeal, he must show he was prejudiced by the defect in the indictment.

¶ 35 Defendant here challenges the sufficiency of the indictment under section 111-3(c) for

the first time on appeal and, thus, must show he was prejudiced thereby, i.e., that the indictment

failed to notify him that he was being charged with a Class 4 felony theft. See People v.

Jameson,

(1994) (holding that “[s]ection 111-3(c) ensures that a

defendant receives pretrial notice that the State is charging the defendant with a higher

classification of offense because of a prior conviction,” and that “[t]he legislature enacted section

111-3(c) to ensure that a defendant received notice, before trial, of the offense with which he is

charged” (emphasis in the original)).

¶ 36 Initially, we note that defendant makes no argument that he was not on notice before trial

that he was being charged with a Class 4 felony theft. Nor could he make such an argument, as

the indictment informed him that he was being charged with theft after having been previously

convicted of retail theft. Only one offense level and sentencing range is allowed for a defendant

charged with theft who has a prior conviction for retail theft: a Class 4 offense with a prison term

of between one and three years. See 720 ILCS 5/16-1(b)(2) (West 2012); 730 ILCS 5/5-4.5-45(a)

(West 2012). Accordingly, as defendant was on notice before trial that he was being charged

with Class 4 felony theft subject to a potential three-year term of imprisonment, his challenge to

the sufficiency of the indictment fails.

¶ 37 Next, defendant argues that the trial court erred in its assessment of certain fines and fees.

Defendant forfeited review by failing to object during sentencing. People v. Hillier,

(2010). We choose to review the issue as plain error under Illinois Supreme Court Rule

615(a).

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¶ 38 First, defendant argues, and the State agrees, that the $250 DNA analysis fee was

improperly imposed on him by the trial court and should be vacated because defendant is

currently registered in the DNA database. See People v. Marshall,

(2011).

Accordingly, we vacate the $250 DNA analysis fee and direct the clerk of the circuit court to

modify the fines and fees order accordingly.

¶ 39 Next, defendant argues the trial court improperly imposed a $50 fine on him pursuant to

section 5-1101(c) of the Counties Code (55 ILCS 5/5-1101(c) (West 2012)). Section 5-1101(c)

provides for defendant to be charged $50 after being found guilty of a felony. Defendant was

convicted of a felony, and therefore we affirm the $50 fine pursuant to section 5-1101(c).

¶ 40 Next, defendant argues, and the State agrees, that he is entitled to (1) a $15 presentence

incarceration credit to be applied to the $15 State Police operations fine and (2) a $50

presentence incarceration credit to be applied to the $50 court system fine. Thus, we direct the

clerk of the circuit court to modify the fines and fees order to reflect a reduction of defendant’s

fines by a total of $65. See section 110-14(a) of the Code (725 ILCS 5/110-14(a) (West 2012)

(providing that a defendant who is assessed a fine is allowed a credit of $5 for each day he was in

custody on a bailable offense for which he did not post bail).

¶ 41 Finally, defendant contends the $190 fee imposed on him for the filing of a felony

complaint is actually a fine subject to the $5 per day presentence incarceration credit. The $5 per

day presentence incarceration credit applies to “fines,” which are pecuniary punishments

imposed as part of a criminal sentence. People v. Tolliver,

(2006). The

$5 per day presentence incarceration credit does not apply to “fees.”

. A “fee” “is a

charge for labor or services, and is a collateral consequence of the conviction which is not

punitive, but instead, compensatory in nature.”

.

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¶ 42 In Tolliver, we held that the charge imposed on a defendant for the filing of a felony

complaint is a fee, not a fine and, therefore, the $5 per day presentence incarceration credit

provided for in section 110-14(a) of the Code does not apply.

Accordingly, we affirm

defendant’s $190 fee for the filing of the felony complaint.

¶ 43 For all the foregoing reasons, we affirm the judgment of the circuit court and direct the

clerk of the circuit court to modify the fines and fees order pursuant to Illinois Supreme Court

Rule 615(b)(1).

¶ 44 Affirmed as modified.

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