## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Suprem e Court

People v . Cardona , 2013 IL 114076

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOIS, Appellee
, v. HERNANDO CARDONA, Appe llant.

Docke t No. 114076

Filed Marc h 21, 2013

Held ( Note : This syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) W h er e there was a char g e of unlawful restra int of a y oung g irl but t h e

acc used was unfit to be tried criminally
, an order for him to reg ister as a

sex offe nder did not deny due proce ss wher e enter ed at a civil “discha rg e”

or “innocence only ” hear ing pursuant to statute at which finding s wer e made that the offe nse was sexually motivated and that the acc used was not not guilty

.

Dec ision Under Review Appea l from the Appellate Court for the Second Di s trict; hear d in that

cour t o n appea l from the Circuit Court of L ake County
, the Hon. Fr ed For eman, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletie r, State Appellate Def ender
, Alan D. Goldberg
, Deputy De fe nder, and Kathlee n D. W eck, Assistant Appellate Defe nder, of t h e Offic e of the State Appellate D efe nder, of Chicag o, for a

ppellant.

L isa Madig an, Attorney Gene ral, of Springf ield, and Mi chae l Ner

heim, State’s Attorney
, of Waukeg an (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and L eah My ers Be ndik, Assistant Attorney s Gene ral, of Chica g o, of counse l), for the People.

J ustices J USTI CE THOMAS delivere d the judg ment of the c ourt, with opinion.
Chief J ustice Kilbride and J ustices Fr eema n, Gar man, Kar meier, Bur

ke, and The is concurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant, Her

nando Cardona, appea led from an order of the ci rc u i t co u rt of L ake Coun t y ce rt ifying him as a sex offe nder under the Sex Offe nder Registration Act (SORA) (730 I L CS 150/1 et seq

. (West 2008)). On appea l, defe ndant argued, inter alia
, that the sex offe nder cer

tification should be vacated beca use it resulted from a violation of his proce dural due proce ss rig hts. The appellate court aff irmed. 2012 I L App (2d) 100542. Def endant ag ain
appea led, and this court allowed his petition for leave to a ppeal (I ll. S. Ct. R. 315 (ef f. Fe b. 26, 2010)).

¶ 2 BA CKGROUND ¶ 3 Def

endant was char g ed by indictment w ith one count of indece nt solicitation of a child (720 I L CS 5/11-6(a) (West 2008)) and one count of unlawful restra int (720 I L CS 5/10-3(a) (West 2008)). Shortly there afte r, the trial court order ed an evaluation of defe ndant’s fitness
to sta nd trial. The clinical psycholog ist who evaluated defe ndant re ported to the court that,
among other things, defe ndant showed signs of “an acu t e t h o u ght disorder” ; was “not oriented to place
, person, and situation”; app eared to be in “an acute schizophrenic s tate”; and was incapa

ble of understanding the nature and purpose of the leg al pro ce ed i n gs or assisting in his defe nse. Ba sed on these observations, the psy cholog ist rec ommend ed t h at defen dant be found unfit to stand trial. The trial court ag ree d, found defe ndant unfit, and order ed him transfe rre d to the Elg in Mental Hea lth Center for further eval u ation and
treatment. ¶ 4 After more than a y ear at the mental health cente r, defe ndant still had not been restore d
to fitness. Consequently
, defe nse counse l moved for a discharg e hearing. See 725 I L CS 5/104-25 (West 2008). In response , and pursuant to section 115-10 of the Code of Criminal Procedur e of 1963 (725 I L CS 5/115-10 (West 2008)), the State filed a notice of intent to call

-2-cer tain witnesses who would testify as t o statements t hat A.K., the child victim, had made
to them. The trial court held a section 115-10 hear ing and co n cl u d ed that the proff ere d
statements wer e sufficie ntly reliable to be admitted as substantive evidenc e at trial or, in the absenc e of a

trial, the dischar g e hea

ring

. ¶ 5 The dis ch ar ge h ea ri n g co m m en ce d near ly two y ear s afte r the events leading to the char g ed o ff

en s es t ook place

. At the discharg e hear ing, the now 13-year -old victim, A.K., testified t hat, on the afternoon of May 18, 2007, she wa s walkinghome from sc hool when she hea rd her friend, D .H., ca lling her

name. A.K . stopped walkingand wa ited for D.H. to
catc h up. When D.H. caught up to A.K., she told A.K. that a man had been chasing her. The
two friends then walke d toge ther for a time but separ ated ag ain when D.H. turned a corne r to meet h er s i s t er

. S h o rtly afte r t hat, a man gra bbed A.K. by the wrist and said to her, in a Spanish acc ent, that “whe ther [she] l i k ed i t or not, [she] was g oing to g o with him.” A.K. then tried to pull her wrist fre e from the man’s g rasp and when she could not brea k fre e, she kicked the man in the shin. At that point, the man let her g o, and A.K. immediately ran awa y down t he st ree t toward her home. When she looke d back, the man was no long er pursuing her but was now heading in the opposite direc tion awa y from her. Although A.K. did not g et

a g ood look at the man’s fac e, she did notice that he was wea ring black shoes that wer e “kind of torn up.” A.K. rec og nized the shoes as those that wer e worn by a man who walked around “eve ry day” by her school, a man she identified in court as defe ndant. A.K. could not rec all

one wa y or the other whether the man who g rabbe d her sa id any thing to her

about wanting to have se x with her. ¶ 6 D.H. testified that, on the afte rnoon in question, she was walking home from school when

an older man whom she had seen befor e beg an approa ching her. The man was wea ring jeans and black shoes t hat “looked torn up like wi t h h o l es in them.” D.H. ran from the m an and
caught up with her fr iend, A.K. D.H . told A.K. about t he man, and the two friends walked toge ther to the corne r, at which p o int D.H. turned while A.K. continued straig ht. D.H. identified def

endant in cour

t as the man who a

pproac hed her

that day

. ¶ 7 A.K.’s fathe r testified that, on the afte rnoon in question, he was standing in his front yard when A.K. ran up to him, cry ing and out of breath. A.K. was very shaken up and tol d him that something had happene d to her, that a man g rabbe d her and told her that he “[was] g oing
to have sex with her.” A.K.’s fathe r immediately called the police. A few day s later, A.K.’s fathe r spotted a man in the neig hborhood whom he believed was the man who had g rabbe d his daug hter. A.K.’s fathe r testified that this man walked around their neig hborhood “almost daily ,” and that t h e m an wa s wea ring a “wor

n-out, black pair of Converse” shoes that matched the descr iption g iven by A.K. A.K.’s fathe r identified defe ndant in court as the man he sawthat day

. ¶ 8 Offic er Michae l Tay lor, a juvenile office r for the City of Waukeg an, t es t i fi ed that he interviewe d A.K. five day s afte r the incident. A.K. first told Taylor about her encounte r with D.H., in which D.H. repor ted that a man had been following her. A.K. then told Taylor that, afte r she and D.H. parte d wa y s , a m an g rabbe d A.K. by the rig ht arm and asked her, in a Spanish acc ent, 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 awa y from the man’s g rasp, and when sh e co u l d not, she kicked the man twice in the shin. At that point, the man let her g o, and

-3-A.K. ran awa y

. Although A.K. d i d n o t get a g ood look at the man’s fac e, she was able to descr ibe hi s clothing, including his black tennis shoes. D .H. later identified defendant in a photo lineup as the man who w as followingher that after noon. ¶ 9 At the close of evidenc e, the trial court found defe ndant n o t gu i l t y of the indece nt solicitation char g e. In doing so, the court stated in its written judgme nt order that there was “conf licting testimony ” that left “some doubt” as to whether defe ndant v erb al l y s olicited A.K. for sex. As to the unlawful restra int, the trial court found that defe ndant should not be acquitted of

that char g e and the ref

ore e ntere d a findingof not not guilty

. ¶ 10 Following the discharg e hear ing, the trial court o rd er ed defe ndant to underg o further mental health treatment. Severa l months later, as defe ndant’s term of extended trea tment was coming to a close, the I llinois Depa rtment of Human Service s repor ted to the trial court that defe ndant “re mains Unfit to Stand Trial and, Unlikely to be restore d to Fitness.” In addition, the Depa rtment repor

ted that defe ndant did not meet the criter ia for civil commitment, as he did not pose a serious t hreat of harm either to himself or t o others. At t h at p o i n t , t he S tate filed a motion asking the trial court to cer tify defe ndant as a sex offe nder on the g rounds that the unlawful restra int of which defe ndant was not a cquitted was “sexually motivated.” See 730 I L CS 150/2(B) (1), (1.5) (West 2008). The trial co urt g rante d the State’s motion and
enter ed an o rd er (1) finding that defe ndant di d not meet the criter ia for civil commitment; (2) finding that one or more of the fac ts underly ing the unlawful restra int indicated an intent
to eng ag e in behavior of a sexual nature ; and (3) order ing defe ndant to reg ister as a sex offe nder. ¶ 11 The trial court subsequently denied defe ndant’s motion to rec o n s i d er , and def endant
appea led. On appea l, defe ndant raised two arguments. First, he arg ued that the evidenc e was insufficient to support the trial court’s finding that the u n l aw fu l restraint was sexually motivated

. S ec ond, he arg ued that his constitutional rig ht to proce dural due proce ss was violated “in that he was deprive d of liberty without a meaning ful opportunity to be hear d.” 2012 I L App (2d) 100542, ¶ 46. The ap p el l at e court reje cted both of these arguments and aff irmed the trial c ourt’s judg ment. Id . ¶ 54. 1 ¶ 12 This court allowed defe ndant’s petiti on for leave to appea l (I ll. S. C t. R. 315 (ef f. Feb. 26, 2010)).

¶ 13 DI SCUS SI ON ¶ 14 Be fore this court, defe ndant no longe r contests the sufficie ncy of the evidenc e to suppor t the trial court’s finding that the unlawful restra int was sexually motivated. Instead, he argues only that his right to proc edura l due proc ess was violate d. ¶ 15 A proce dural due proce ss claim prese nts a leg al question subject to de n o vo re v i ew

.

T he app el la te cou rt al so add re sse d a j uri sdi ct ion al ar gum ent ra is ed by the Sta te

. See 2012 1
I L App (2d ) 1 0054 2, ¶¶ 28- 30. Alt hough the Sta te inc lud ed tha t ar gum ent in it s bri ef bef ore thi s

cou rt , it la te r wit hdr ew t h e a rgum ent at ora l ar gum ent in li ght of fa ct ual poi nts bro ught out in def end ant ’s re ply bri ef

. We the re for e have no cau se to dis cus s or addre ss tha t is sue in thi s dec is ion

.

-4-People ex rel. Birkett v. Konetski
, 233 I ll. 2d 185, 201 (2009). Procedur al due proce ss claims

challeng e the constitutionalit y of the specific proce dures used to deny a person’ s life, liberty
, or property

. Id. The fundamental requirements of due process ar e notice of the proceeding and an opportunity to prese nt any objections. Id

. Due proce ss is a flexibl e conce pt, and “ ‘not all situations ca lling for proce dural safe guards call for the same kind of proce dure.’ ” Lyon

v. Departme nt of Children & Family Servic es , 209 I ll. 2d 264, 272 (2004) (quoting Morrissey

v. Brewer
, 4 0 8 U. S. 471, 481 (1972))

. Courts should consider the following fac tors in evaluating a

proce dural due proce ss claim:
“ ‘F irst, the private interest that will be aff ecte d by the officia l action; second, the risk of an err oneous deprivation of such interest through the proce dures used, and the probable value, if any , of additional or substitut e proce dural safe guards; and finally
, the Gover

nment’s interest, including the function involved and the fiscal and administrative burd e n s th a t th e a d d it io n a l or substitut e proce dural require ment would entail.’ ” Lyon
, 209 I ll. 2d at 277 (quoting Mathews v. Eldridge , 424 U.S. 319, 335 (1976))

. Statutory enac tments are presumed constitutional, and to overc ome t h at p resumption, the party challeng ing the statute must clea rly establish a constitutional violation. Konetski
, 233 I ll. 2d at 200. ¶ 16 Her e, we are hard presse d to apply the familiar Mathews fac tors, and most espec ially the second and third fac tors, as defe ndant does not identify for this court what “addition al o r substitut e proce dural safe guards” he is seeking

. On the contra ry , defe ndant’s position, which

was implicit in his ope ning brief and then made expli cit in his reply brief, is that, g iven his unfitness to stand trial, “ no additional proce dural safe guards will be adequate” to protec t his
proce dural due proce ss rights in this case

. I t is defe n d an t ’s p o sition that, even if he wer e g rante d the full panoply of proce dural rig hts aff orded to adult criminal defe ndants, including the rig ht to a jury trial, any resulting sex offe nder cer tificati o n would still violate his
proce dural due proce ss rig hts beca use, as s o meone who is leg ally unfit to stand trial, he is incapa ble o f p ar t icipating meaning fully in any proce eding in which his life, liberty
, or proper ty is at stake. 2 ¶ 17 Gi v en the nature of defe ndant’s argument, this court fac es something of an ana ly t i ca l dilemma. This is beca

use, althoug h defe ndant insists that he is bri n gi n g a proce dural due
proce ss challeng e, and althoug h all of the case law he cites and applies relates to proce dural due proce ss, it appea

rs to us that defe ndant’s challeng e is more in the nature of a substantive due proce ss challenge

. This court has explained that, “[w]hereas proce dural due proce ss g overns the proce dures emp l oy ed to deny a person’ s life, liberty or proper ty interest, substantive due proce ss limit s the s t ate’s ability to act, irrespe ctive of the proce dural protec tions provided.” In re Marriage of Miller
, 227 I ll. 2d 185, 197 (2007); see also People

v. Tenner
, 206 I ll. 2d 381, 394-95 (2002) (noting th e d i s t i nction betwee n prosec uting a potentially unfit defe ndant without first holding a fitness hear ing, which is a proce dural due

Def ens e cou nse l re it er at ed thi s at ora l ar gum ent , te ll ing th e c o u r t tha t, in li ght of 2 def end ant ’s m ent al unf

it nes s, “t her e ar e no pro cedure s tha t can actual ly compensa te for thi s m an.”

-5-proce ss violation, and prosec uting an actua lly unfit defe ndant, which is a substantive due

proce ss violation). In other words, a proce dural due proce ss claim asser ts that the deprivation
at issue is constitutionally invalid beca use the proce ss leading up to it was defic ient, wher eas

a substantive due proce ss claim asser ts that the deprivatio n at issue is constitutionalit y invalid in and of itself, irre spective of the proc ess leadingup to it. ¶ 18 Viewe d in this light, defe ndant’s claim in this case cer tai n l y ap p ea rs t o b e o n e of substantive due process. Aga in, defe ndant’s posi tion is not that he was denie d t h e proce ss he was due, or that differ ent or additional proce dural safe guards would have rende red his sex offe nder cer

tification constitutionally valid. Rather, defe ndant’s position is that, beca use he can neither understand the nature a nd purpose of the proceeding s nor assist his attorney in his defe nse, th e r e a

r e n o proce dural safe guards that the State could provide to constitutionally permit defe ndant’s cer

tification as a sex offe nder. Stated differ ently
, defe ndant’s position is that subjecting him, a leg ally unfit defe n d ant, to proce eding s resulting in sex offe nder

cer tification is and alway s will be fundame ntally unfair, irrespe ctive o f t h e p ro cedur al protec tions provided. That is a textbook subst antive due pr ocess c laim. ¶ 19 The problem this cre ates for us is this: By i n s i s t i n g t h at t h er e are no proce dural safe guards sufficie n t t o p ermit the sex offe nder cer tification of a defe ndant who has been found leg ally unfit to stand trial, defe ndant to a larg e degre e n u l l ifies his proce dural due
proce ss claim. Indeed, the State cannot deny that which it cannot provide. At the same time, defe ndant neither invokes nor applies e ven the ba sic principles of substantive due proce ss, there by prec luding this court from considering his argument in those terms. See I ll. S. Ct. R. 341(h)( 7) (ef

f. J uly 1, 2008) (“[p]oi nts not argued are waived” ). Under these circ umstances,

we believe that the only leg itimate (and cer tainly most prudent) course is to consider, as best

we can, o nly whether defe ndant has satisfied his burden with respe ct to the claim he is purporting to bring

—that is, a proce dural due proce ss violation—and leave for another day
any considera

tion of the substantive due proce ss claim that is lurki n g j u s t b en eath the surfa ce. See
, e.g. , Connecticut De partment of Public Safety v. Doe
, 538 U.S. 1, 7-8 (2003) (whe re responde nt invoke d only proce dural due proce ss principles, Court ref used to r eca st responde nt’s proce dural due proce ss c halleng e to the Connecticut sex offe nder reg istration statute as a substantive due proce ss challeng e). ¶ 20 So with those preliminaries out of the way , we now turn to t h e m er i t s o f defe ndant’s
proce dural due proce ss claim. SORA’s definition of “sex offe nder” includes any person who is charg ed with a “sex offe nse” and who “is the subject of a finding not re s u l t i ng in an acquittal at a [di scharg e] hear ing *** for the alleg ed commission or attempted commission of such offe nse.” 730 I L CS 150/2(A)( 1)(d) (West 2008). Her e, defe ndant was char g ed with indece nt solicitation of a child, wh i ch is alway s a “sex offe nse,” and unlawful restra int, which is a “sex offe nse” only when the victim is under 18 y ear s of ag e, the defe ndant is not the victim’s pare nt, and the offe nse was “sexua l l y m o tivated” as that term is define d in section 10 of the Sex Offe nder Manag ement Boa rd Act. 730 I L CS 150/2(B) (1), (1.5) (West 2008). At the conclusion of defe ndant’s discharg e hear ing, the trial court acquitted defe ndant of indece nt solicitation of a child but f ound him not

not guilty

of unlawf

ul restra int. At the State’s reque st, the trial court later enter ed a finding that the unlawful restra int was “sexually motivated.” At that point, defe ndant fell square ly within SORA’s d ef inition of “sex

-6-offe nder,” and the trial court there fore order ed him to comply with SORA’s reg istration

require ments. ¶ 21 Def

end an t ar gu es t hat his cer tification as a sex offe nder must be vaca ted beca use the
proce eding s that led to it wer e constitutionally defic ient from a proce dural due proce ss standpoint. Conspicuously ab s ent from defe ndant’s argument, howeve r, i s any mention of what specific proce dural safe guards wer e lacking

. This is critica l be cause “[t] he fundame ntal require ments of due proce ss are notice of the proce eding and an opportunity to pr esent any objections” (

Konetski
, 233 I ll. 2d at 201), and here
, no one could p ossibly dispute that defe ndant rec eived both of these things. T h e re cord confirms, and defe ndant does not dispute, that defe ndant was give n full and adequate notice of both the charg es aga inst him and all of the subsequent proce eding s. Throug hout, defe ndant was repr esente d by appointed counsel who, among other t h i ng s, advocated zealously on his behalf
, thoroug hly crossexamined the State’s witnesses, opposed the State’s reque st f or a findingthat the unlawf ul
restra int was sex ually motivated, and filed a mot ion to rec o n s i d er t h at finding once it was made. Def

endant had the statutory rig ht to prese nt evidenc e and call witnesses on his behalf (725 I L CS 5/104-25(a) (West 2008)), was protec ted at all times from convic t i o n b y t he standard of proof beyond a rea sonable doubt (725 I L CS 5/104-25(b) (West 2008)), and had the rig ht to appea l any finding other than acquittal (725 I L CS 5/104-25(f) (West 2008)). And beca use he speaks only limit ed Eng lish, defe ndant rec eived the regular assistance of a courtappointed interpre ter. In short, although defe ndant did not rec eive the full s p ec t ru m of
proce dural safe guards aff

orded to c r im in a l d e f

e n d a nts , d e f e n d ant did “re ceive [ ] sever al other important proce dural protec tions befor e being require d to reg ister under [S ORA].” Konetski
, 233 I ll. 2d at 202. ¶ 22 In argu i n g t h at h i s ri g ht to proce dural due proce ss was violated, defe ndant at no point
sug g ests what specific proce dural safe guards he should have rec eived either instead of or in addition to those set forth above. Rather, defe ndant’s entire argument seems to be that it violates proce dural due proce ss to subject an unfit defe ndant to any proce eding in which life, liberty
, or proper

ty is at stake beca

use, by definition, such a defe ndant cannot understand or participate in it meaning fully

. But as we have alre ady said, due proce ss is a flexibl e conce pt, and not a ll situations calling for proce dural safe guards call for the same kind of proce dure. Or to put it a

nother way , proce dural due proc ess is founded upon the notion that, prior to a deprivation of life, liberty
, or proper ty , a party is entitled to “ ‘notice and opportunity for [a] hear ing appropriate to the nat ure of the case .’ ” (Emphasis added.) Jones v. F l o wers , 547 U.S. 220, 223 (2006) (quoting Mullane v. Central Hanove r Bank & Trust Co.
, 339 U.S. 306, 313 (1950))

. ¶ 23 In many way s, the question befor e us was eff ectively settled in People v. W aid
, 221 I ll. 2d 464 (2006). In that case , this co u rt ex plained that, while the due proce ss clause
cate g orica lly bars the criminal prosecution of a defe ndant who is not competent to stand trial, the State may hold a discharge hearing with respe ct to such a d efe ndant, even though an extended period of treatment and even involuntary civil commitment may result. Id

. at 480. The rea son for this is that a discha rg e hea ringis not a criminal prosec ution. Rathe r, it is an “innoce nce only ” hear in g t h at i s civil in nature and “simply enable s an unfit defe ndant to have the char g es dismiss ed if the State does not have the evidenc e to prove he committed the

-7-char g ed offe nses beyond a rea sonable doubt.” Id

. As a result, the due proce ss considerations

are very differ ent, and a defe ndant in a discharg e hear ing simply is not entitled to the same deg ree of proc edura l safeguards a s a def endant in a c riminal prosec ution. Id

. ¶ 24 I n light of W

aid
, the only question that rema ins for us today is whether the proc edura l safe guards of a discharg e hear ing, which are sufficie nt to permit the extended treatment and possible involuntary commitment of an unfit defe ndant, are sufficie nt also to permit the sex offe nder cer

tification of an unfit defe ndant. We hold that they are

. To beg in with, it is worth
repe ating that sex offe nder reg istration is n o t punishment. Konetski
, 233 I ll.2d at 203. Rather, it is a regulatory scheme designed to foster public safe ty

. Id

. Acc ording ly
, like persons fac ing

an extended trea

tment period following a discharg e hear ing, persons facing sex offe nder
reg istration are simply not entitled to the same level of proce dural protec tion as those fac ing criminal punishment. Id

. Moreove r, if not rele ased, an unfit defe ndant who is found not not guilty fac es an initial treatme n t p er iod of from one to five y ear s. And if that defe ndant’s condition does not improve, and cer tain other fac tors are prese nt, this initial period can then be extended for up to the maxi mum sentenc e term to which the defe ndant would have been subject if convicted of the char g ed offe nse. In some case s, this will be deca des. This is a substantia l d ep ri v at i on of liberty
, and cer tainly g reater than any that might be fac ed by an unfit defe nd an t who is rele ased from custody entirely
, subject only to compliance with S ORA. Thoug h defe ndant attempts to make the case that the released sex offe nder suffer s

a g reater loss of liberty than the person who, though not cer tified a sex off

en d er , is involuntarily committed for 10, 15, or even 30 y ear s, we are not persua ded by this even for

a moment. Having one’s fre edom of movement eliminated is undeniably more burdensome than having it restricted
, and without deciding whether sex offe nder reg istrat i o n itself implicates a constitutionally protec ted liberty interest, we have no difficulty saying that the
proce dural safe guards that constitutionally permit involuntary commitment also permit sex offe nder cer

tification. Acc ording ly
, we reje ct defe ndant’s argument that his proce dural due
proce ss rig hts were violated in this case. ¶ 25 Be fore concluding
, we wish to addre ss one last point. At various points throughout both of his briefs, as well as at oral argument, defe ndant argues that it is fundame ntally unfair to subject him to sex offe nder reg istration beca use he has never been convicted of committing

a trig g ering offe nse. At one point, for example, defe ndant points out that “he has never been convicted of a crime fo r which sex offe nder reg istration is require d.” At another point, he
notes that his “guilt has n ev er been adjudicated, because he is unfit for trial and cannot be leg ally tried.” At still another point, defe ndant argues that “the court’s ‘not not guilty ’ finding is be ing treated exactly like a conviction for purposes of SORA” and that “the g overnme nt did an end-r

un around [hi s] due proce ss rig hts as a person unfit for trial in order to rea ch the result it wanted, wh i ch was cer tification of this unfit defe ndant as a sex offe nder.” The problem with this argument is that it assumes that the cate g ory “sex offe nder” is rese rved for persons who a

re actually convicted of a trig g eringoffe nse, and tha t defe ndant is somehow being manipulated into that cate g ory throug h unusual, if not improper, means. Nothing could be further from the truth. The cate g ory “sex offe nder” is entirely a cre ature of statute, and there are sever al way s a p er s on can acquir e that label, only one of which is criminal conviction of a trig g ering offe nse. Other way s include being found not guilty of a trig g ering

-8-offe nse by rea son of insanity
, being adjudicate d a juvenile delin q u ent as a result of

comm i t ting a trig g ering offe nse, and, y es, being the subject of a finding not resulting in acquittal at a

discharg e hea

ring . See 730 I L CS 150/ 2(A)( 1)(b) -(d) , 5 (West 2008) . In other words, defenda

nt is not being subject t o s ex offe nder certific ation despite being found not not guilty of a trig g ering offe nse. Rather, beingfound not not guilty of a trig g ering offe nse is the very definition of “sex offe nder.” The State did not do “an end-r un” around any

thing. SORA includes persons like defe ndant in the statutory definition of “sex offe nder,” and the State has eve ry

right to util ize and enfor ce that statute just as it i s written.

¶ 26 CONCLUSI ON ¶ 27 For

the fore g oing r easons, the judg ment of the a ppellate c ourt is affir

med.

¶ 28 Affir

med.

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