ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Cardona, 2013 IL 114076

Caption in Supreme

Court:

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

HERNANDO CARDONA, Appellant.

 

Docket No. 114076

Filed March 21, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Where there was a charge of unlawful restraint of a young girl but the

accused was unfit to be tried criminally, an order for him to register as a

sex offender did not deny due process where entered at a civil “discharge”

or “innocence only” hearing pursuant to statute at which findings were

made that the offense was sexually motivated and that the accused was

not not guilty.

Decision Under 

Review

Appeal from the Appellate Court for the Second District; heard in that

court on appeal from the Circuit Court of Lake County, the Hon. Fred

Foreman, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy

Defender, and Kathleen D. Weck, Assistant Appellate Defender, of the

Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Michael Nerheim,

State’s Attorney, of Waukegan (Michael A. Scodro, Solicitor General,

and Michael M. Glick and Leah Myers Bendik, Assistant Attorneys

General, of Chicago, of counsel), for the People.

Justices JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Hernando Cardona, appealed from an order of the circuit court of Lake

County certifying him as a sex offender under the Sex Offender Registration Act (SORA)

(730 ILCS 150/1 et seq. (West 2008)). On appeal, defendant argued, inter alia, that the sex

offender certification should be vacated because it resulted from a violation of his procedural

due process rights. The appellate court affirmed. 2012 IL App (2d) 100542. Defendant again

appealed, and this court allowed his petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb.

26, 2010)).

¶ 2 BACKGROUND

¶ 3 Defendant was charged by indictment with one count of indecent solicitation of a child

(720 ILCS 5/11-6(a) (West 2008)) and one count of unlawful restraint (720 ILCS 5/10-3(a)

(West 2008)). Shortly thereafter, the trial court ordered an evaluation of defendant’s fitness

to stand trial. The clinical psychologist who evaluated defendant reported to the court that,

among other things, defendant showed signs of “an acute thought disorder”; was “not

oriented to place, person, and situation”; appeared to be in “an acute schizophrenic state”;

and was incapable of understanding the nature and purpose of the legal proceedings or

assisting in his defense. Based on these observations, the psychologist recommended that

defendant be found unfit to stand trial. The trial court agreed, found defendant unfit, and

ordered him transferred to the Elgin Mental Health Center for further evaluation and

treatment.

¶ 4 After more than a year at the mental health center, defendant still had not been restored

to fitness. Consequently, defense counsel moved for a discharge hearing. See 725 ILCS

5/104-25 (West 2008). In response, and pursuant to section 115-10 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-10 (West 2008)), the State filed a notice of intent to call

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certain witnesses who would testify as to statements that A.K., the child victim, had made

to them. The trial court held a section 115-10 hearing and concluded that the proffered

statements were sufficiently reliable to be admitted as substantive evidence at trial or, in the

absence of a trial, the discharge hearing.

¶ 5 The discharge hearing commenced nearly two years after the events leading to the

charged offenses took place. At the discharge hearing, the now 13-year-old victim, A.K.,

testified that, on the afternoon of May 18, 2007, she was walking home from school when

she heard her friend, D.H., calling her name. A.K. stopped walking and waited for D.H. to

catch up. When D.H. caught up to A.K., she told A.K. that a man had been chasing her. The

two friends then walked together for a time but separated again when D.H. turned a corner

to meet her sister. Shortly after that, a man grabbed A.K. by the wrist and said to her, in a

Spanish accent, that “whether [she] liked it or not, [she] was going to go with him.” A.K.

then tried to pull her wrist free from the man’s grasp and when she could not break free, she

kicked the man in the shin. At that point, the man let her go, and A.K. immediately ran away

down the street toward her home. When she looked back, the man was no longer pursuing

her but was now heading in the opposite direction away from her. Although A.K. did not get

a good look at the man’s face, she did notice that he was wearing black shoes that were “kind

of torn up.” A.K. recognized the shoes as those that were worn by a man who walked around

“every day” by her school, a man she identified in court as defendant. A.K. could not recall

one way or the other whether the man who grabbed her said anything to her about wanting

to have sex with her.

¶ 6 D.H. testified that, on the afternoon in question, she was walking home from school when

an older man whom she had seen before began approaching her. The man was wearing jeans

and black shoes that “looked torn up like with holes in them.” D.H. ran from the man and

caught up with her friend, A.K. D.H. told A.K. about the man, and the two friends walked

together to the corner, at which point D.H. turned while A.K. continued straight. D.H.

identified defendant in court as the man who approached her that day.

¶ 7 A.K.’s father testified that, on the afternoon in question, he was standing in his front yard

when A.K. ran up to him, crying and out of breath. A.K. was very shaken up and told him

that something had happened to her, that a man grabbed her and told her that he “[was] going

to have sex with her.” A.K.’s father immediately called the police. A few days later, A.K.’s

father spotted a man in the neighborhood whom he believed was the man who had grabbed

his daughter. A.K.’s father testified that this man walked around their neighborhood “almost

daily,” and that the man was wearing a “worn-out, black pair of Converse” shoes that

matched the description given by A.K. A.K.’s father identified defendant in court as the man

he saw that day.

¶ 8 Officer Michael Taylor, a juvenile officer for the City of Waukegan, testified that he

interviewed A.K. five days after the incident. A.K. first told Taylor about her encounter with

D.H., in which D.H. reported that a man had been following her. A.K. then told Taylor that,

after she and D.H. parted ways, a man grabbed A.K. by the right arm and asked her, in a

Spanish accent, if she wanted to have sex with him. When A.K. replied that she did not, the

man told A.K., “You need to.” A.K. then tried to pull away from the man’s grasp, and when

she could not, she kicked the man twice in the shin. At that point, the man let her go, and

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A.K. ran away. Although A.K. did not get a good look at the man’s face, she was able to

describe his clothing, including his black tennis shoes. D.H. later identified defendant in a

photo lineup as the man who was following her that afternoon.

¶ 9 At the close of evidence, the trial court found defendant not guilty of the indecent

solicitation charge. In doing so, the court stated in its written judgment order that there was

“conflicting testimony” that left “some doubt” as to whether defendant verbally solicited

A.K. for sex. As to the unlawful restraint, the trial court found that defendant should not be

acquitted of that charge and therefore entered a finding of not not guilty.

¶ 10 Following the discharge hearing, the trial court ordered defendant to undergo further

mental health treatment. Several months later, as defendant’s term of extended treatment was

coming to a close, the Illinois Department of Human Services reported to the trial court that

defendant “remains Unfit to Stand Trial and, Unlikely to be restored to Fitness.” In addition,

the Department reported that defendant did not meet the criteria for civil commitment, as he

did not pose a serious threat of harm either to himself or to others. At that point, the State

filed a motion asking the trial court to certify defendant as a sex offender on the grounds that

the unlawful restraint of which defendant was not acquitted was “sexually motivated.” See

730 ILCS 150/2(B)(1), (1.5) (West 2008). The trial court granted the State’s motion and

entered an order (1) finding that defendant did not meet the criteria for civil commitment;

(2) finding that one or more of the facts underlying the unlawful restraint indicated an intent

to engage in behavior of a sexual nature; and (3) ordering defendant to register as a sex

offender.

¶ 11 The trial court subsequently denied defendant’s motion to reconsider, and defendant

appealed. On appeal, defendant raised two arguments. First, he argued that the evidence was

insufficient to support the trial court’s finding that the unlawful restraint was sexually

motivated. Second, he argued that his constitutional right to procedural due process was

violated “in that he was deprived of liberty without a meaningful opportunity to be heard.”

2012 IL App (2d) 100542, ¶ 46. The appellate court rejected both of these arguments and

affirmed the trial court’s judgment. Id. ¶ 54.1

¶ 12 This court allowed defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb.

26, 2010)).

¶ 13 DISCUSSION

¶ 14 Before this court, defendant no longer contests the sufficiency of the evidence to support

the trial court’s finding that the unlawful restraint was sexually motivated. Instead, he argues

only that his right to procedural due process was violated.

¶ 15 A procedural due process claim presents a legal question subject to de novo review.

The appellate court also addressed a jurisdictional argument raised by the State. See 2012 1

IL App (2d) 100542, ¶¶ 28-30. Although the State included that argument in its brief before this

court, it later withdrew the argument at oral argument in light of factual points brought out in

defendant’s reply brief. We therefore have no cause to discuss or address that issue in this decision.

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People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009). Procedural due process claims

challenge the constitutionality of the specific procedures used to deny a person’s life, liberty,

or property. Id. The fundamental requirements of due process are notice of the proceeding

and an opportunity to present any objections. Id. Due process is a flexible concept, and “ ‘not

all situations calling for procedural safeguards call for the same kind of procedure.’ ” Lyon

v. Department of Children &Family Services, 209 Ill. 2d 264, 272 (2004) (quotingMorrissey

v. Brewer, 408 U.S. 471, 481 (1972)). Courts should consider the following factors in

evaluating a procedural due process claim:

“ ‘First, the private interest that will be affected by the official action; second, the risk

of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards; and finally,

the Government’s interest, including the function involved and the fiscal and

administrative burdensthat the additional or substitute procedural requirement would

entail.’ ” Lyon, 209 Ill. 2d at 277 (quoting Mathews v. Eldridge, 424 U.S. 319, 335

(1976)).

Statutory enactments are presumed constitutional, and to overcome that presumption, the

party challenging the statute must clearly establish a constitutional violation. Konetski, 233

Ill. 2d at 200.

¶ 16 Here, we are hard pressed to apply the familiar Mathewsfactors, and most especially the

second and third factors, as defendant does not identify for this court what “additional or

substitute procedural safeguards” he is seeking. On the contrary, defendant’s position, which

was implicit in his opening brief and then made explicit in his reply brief, is that, given his

unfitness to stand trial, “no additional procedural safeguards will be adequate” to protect his

procedural due process rights in this case. It is defendant’s position that, even if he were

granted the full panoply of procedural rights afforded to adult criminal defendants, including

the right to a jury trial, any resulting sex offender certification would still violate his

procedural due process rights because, as someone who is legally unfit to stand trial, he is

incapable of participating meaningfully in any proceeding in which his life, liberty, or

property is at stake.2

¶ 17 Given the nature of defendant’s argument, this court faces something of an analytical

dilemma. This is because, although defendant insists that he is bringing a procedural due

process challenge, and although all of the case law he cites and applies relates to procedural

due process, it appears to us that defendant’s challenge is more in the nature of a substantive

due process challenge. This court has explained that, “[w]hereas procedural due process

governs the procedures employed to deny a person’s life, liberty or property interest,

substantive due process limits the state’s ability to act, irrespective of the procedural

protections provided.” In re Marriage of Miller, 227 Ill. 2d 185, 197 (2007); see also People

v. Tenner, 206 Ill. 2d 381, 394-95 (2002) (noting the distinction between prosecuting a

potentially unfit defendant without first holding a fitness hearing, which is a procedural due

Defense counsel reiterated this at oral argument, telling the court that, in light of 2

defendant’s mental unfitness, “there are no procedures that can actually compensate for this man.”

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process violation, and prosecuting an actually unfit defendant, which is a substantive due

process violation). In other words, a procedural due process claim asserts that the deprivation

at issue is constitutionally invalid because the process leading up to it was deficient, whereas

a substantive due process claim asserts that the deprivation at issue is constitutionality

invalid in and of itself, irrespective of the process leading up to it.

¶ 18 Viewed in this light, defendant’s claim in this case certainly appears to be one of

substantive due process. Again, defendant’s position is not that he was denied the process

he was due, or that different or additional procedural safeguards would have rendered his sex

offender certification constitutionally valid. Rather, defendant’s position is that, because he

can neither understand the nature and purpose of the proceedings nor assist his attorney in

his defense, there are no procedural safeguards that the State could provide to constitutionally

permit defendant’s certification as a sex offender. Stated differently, defendant’s position is

that subjecting him, a legally unfit defendant, to proceedings resulting in sex offender

certification is and always will be fundamentally unfair, irrespective of the procedural

protections provided. That is a textbook substantive due process claim.

¶ 19 The problem this creates for us is this: By insisting that there are no procedural

safeguards sufficient to permit the sex offender certification of a defendant who has been

found legally unfit to stand trial, defendant to a large degree nullifies his procedural due

process claim. Indeed, the State cannot deny that which it cannot provide. At the same time,

defendant neither invokes nor applies even the basic principles of substantive due process,

thereby precluding this court from considering his argument in those terms. See Ill. S. Ct. R.

341(h)(7) (eff. July 1, 2008) (“[p]oints not argued are waived”). Under these circumstances,

we believe that the only legitimate (and certainlymost prudent) course is to consider, as best

we can, only whether defendant has satisfied his burden with respect to the claim he is

purporting to bring—that is, a procedural due process violation—and leave for another day

any consideration of the substantive due process claim that is lurking just beneath the

surface. See, e.g., Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 7-8 (2003)

(where respondent invoked only procedural due process principles, Court refused to recast

respondent’s procedural due process challenge to the Connecticut sex offender registration

statute as a substantive due process challenge).

¶ 20 So with those preliminaries out of the way, we now turn to the merits of defendant’s

procedural due process claim. SORA’s definition of “sex offender” includes any person who

is charged with a “sex offense” and who “is the subject of a finding not resulting in an

acquittal at a [discharge] hearing *** for the alleged commission or attempted commission

of such offense.” 730 ILCS 150/2(A)(1)(d) (West 2008). Here, defendant was charged with

indecent solicitation of a child, which is always a “sex offense,” and unlawful restraint,

which is a “sex offense” only when the victim is under 18 years of age, the defendant is not

the victim’s parent, and the offense was “sexually motivated” as that term is defined in

section 10 of the Sex Offender Management Board Act. 730 ILCS 150/2(B)(1), (1.5) (West

2008). At the conclusion of defendant’s discharge hearing, the trial court acquitted defendant

of indecent solicitation of a child but found him not not guilty of unlawful restraint. At the

State’s request, the trial court later entered a finding that the unlawful restraint was “sexually

motivated.” At that point, defendant fell squarely within SORA’s definition of “sex

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offender,” and the trial court therefore ordered him to comply with SORA’s registration

requirements.

¶ 21 Defendant argues that his certification as a sex offender must be vacated because the

proceedings that led to it were constitutionally deficient from a procedural due process

standpoint. Conspicuously absent from defendant’s argument, however, is any mention of

what specific procedural safeguards were lacking. This is critical because “[t]he fundamental

requirements of due process are notice of the proceeding and an opportunity to present any

objections” (Konetski, 233 Ill. 2d at 201), and here, no one could possibly dispute that

defendant received both of these things. The record confirms, and defendant does not

dispute, that defendant was given full and adequate notice of both the charges against him

and all of the subsequent proceedings. Throughout, defendant was represented by appointed

counsel who, among other things, advocated zealously on his behalf, thoroughly crossexamined the State’s witnesses, opposed the State’s request for a finding that the unlawful

restraint was sexually motivated, and filed a motion to reconsider that finding once it was

made. Defendant had the statutory right to present evidence and call witnesses on his behalf

(725 ILCS 5/104-25(a) (West 2008)), was protected at all times from conviction by the

standard of proof beyond a reasonable doubt (725 ILCS 5/104-25(b) (West 2008)), and had

the right to appeal any finding other than acquittal (725 ILCS 5/104-25(f)(West 2008)). And

because he speaks only limited English, defendant received the regular assistance of a courtappointed interpreter. In short, although defendant did not receive the full spectrum of

procedural safeguards afforded to criminal defendants, defendant did “receive[ ] several other

important procedural protections before being required to register under [SORA].” Konetski,

233 Ill. 2d at 202.

¶ 22 In arguing that his right to procedural due process was violated, defendant at no point

suggests what specific procedural safeguards he should have received either instead of or in

addition to those set forth above. Rather, defendant’s entire argument seems to be that it

violates procedural due process to subject an unfit defendant to any proceeding in which life,

liberty, or property is at stake because, by definition, such a defendant cannot understand or

participate in it meaningfully. But as we have already said, due process is a flexible concept,

and not all situations calling for procedural safeguards call for the same kind of procedure.

Or to put it another way, procedural due process is founded upon the notion that, prior to a

deprivation of life, liberty, or property, a party is entitled to “ ‘notice and opportunity for [a]

hearing appropriate to the nature of the case.’ ” (Emphasis added.) Jones v. Flowers, 547

U.S. 220, 223 (2006) (quoting Mullane v. Central Hanover Bank &Trust Co., 339 U.S. 306,

313 (1950)).

¶ 23 In many ways, the question before us was effectively settled in People v. Waid, 221 Ill.

2d 464 (2006). In that case, this court explained that, while the due process clause

categoricallybars the criminal prosecution of a defendant who is not competent to stand trial,

the State may hold a discharge hearing with respect to such a defendant, even though an

extended period of treatment and even involuntary civil commitment may result. Id. at 480.

The reason for this is that a discharge hearing is not a criminal prosecution. Rather, it is an

“innocence only” hearing that is civil in nature and “simply enables an unfit defendant to

have the charges dismissed if the State does not have the evidence to prove he committed the

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charged offenses beyond a reasonable doubt.” Id. As a result, the due process considerations

are very different, and a defendant in a discharge hearing simply is not entitled to the same

degree of procedural safeguards as a defendant in a criminal prosecution. Id.

¶ 24 In light of Waid, the only question that remains for us today is whether the procedural

safeguards of a discharge hearing, which are sufficient to permit the extended treatment and

possible involuntary commitment of an unfit defendant, are sufficient also to permit the sex

offender certification of an unfit defendant. We hold that they are. To begin with, it is worth

repeating that sex offender registration is not punishment. Konetski, 233 Ill.2d at 203. Rather,

it is a regulatory scheme designed to foster public safety. Id. Accordingly, like persons facing

an extended treatment period following a discharge hearing, persons facing sex offender

registration are simply not entitled to the same level of procedural protection as those facing

criminal punishment. Id. Moreover, if not released, an unfit defendant who is found not not

guilty faces an initial treatment period of from one to five years. And if that defendant’s

condition does not improve, and certain other factors are present, this initial period can then

be extended for up to the maximum sentence term to which the defendant would have been

subject if convicted of the charged offense. In some cases, this will be decades. This is a

substantial deprivation of liberty, and certainly greater than any that might be faced by an

unfit defendant who is released from custody entirely, subject only to compliance with

SORA. Though defendant attempts to make the case that the released sex offender suffers

a greater loss of liberty than the person who, though not certified a sex offender, is

involuntarily committed for 10, 15, or even 30 years, we are not persuaded by this even for

a moment. Having one’s freedom of movement eliminated is undeniably more burdensome

than having it restricted, and without deciding whether sex offender registration itself

implicates a constitutionally protected liberty interest, we have no difficulty saying that the

procedural safeguards that constitutionally permit involuntary commitment also permit sex

offender certification. Accordingly, we reject defendant’s argument that his procedural due

process rights were violated in this case.

¶ 25 Before concluding, we wish to address one last point. At various points throughout both

of his briefs, as well as at oral argument, defendant argues that it is fundamentally unfair to

subject him to sex offender registration because he has never been convicted of committing

a triggering offense. At one point, for example, defendant points out that “he has never been

convicted of a crime for which sex offender registration is required.” At another point, he

notes that his “guilt has never been adjudicated, because he is unfit for trial and cannot be

legallytried.” At still another point, defendant argues that “the court’s ‘not not guilty’ finding

is being treated exactly like a conviction for purposes of SORA” and that “the government

did an end-run around [his] due process rights as a person unfit for trial in order to reach the

result it wanted, which was certification of this unfit defendant as a sex offender.” The

problem with this argument is that it assumes that the category “sex offender” is reserved for

persons who are actually convicted of a triggering offense, and that defendant is somehow

beingmanipulated into that categorythrough unusual, if not improper, means. Nothing could

be further from the truth. The category “sex offender” is entirely a creature of statute, and

there are several ways a person can acquire that label, only one of which is criminal

conviction of a triggering offense. Other ways include being found not guilty of a triggering

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offense by reason of insanity, being adjudicated a juvenile delinquent as a result of

committing a triggering offense, and, yes, being the subject of a finding not resulting in

acquittal at a discharge hearing. See 730 ILCS 150/2(A)(1)(b)-(d), 5 (West 2008). In other

words, defendant is not being subject to sex offender certification despite being found not

not guilty of a triggering offense. Rather, being found not not guilty of a triggering offense

is the very definition of “sex offender.” The State did not do “an end-run” around anything.

SORA includes persons like defendant in the statutory definition of “sex offender,” and the

State has every right to utilize and enforce that statute just as it is written.

¶ 26 CONCLUSION

¶ 27 For the foregoing reasons, the judgment of the appellate court is affirmed.

¶ 28 Affirmed.

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