2020 IL App (1st) 181060-U 

 THIRD DIVISION

December 30, 2020 

 

No. 1-18-1060 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

 v. ) No. 14 CR 5071 

 ) 

EDMOND THOMAS, ) Honorable 

 ) Neera Lall Walsh

 Defendant-Appellant. ) Judge Presiding. 

______________________________________________________________________________ 

PRESIDING JUSTICE HOWSE delivered the judgment of the court.

Justices McBride and Ellis concurred in the judgment. 

ORDER

¶ 1 Held: The judgment of the circuit court of Cook County summarily dismissing 

defendant’s postconviction petition is affirmed; defendant failed to make a gist of an 

arguably constitutional claim of ineffective assistance by appellate counsel. 

¶ 2 Defendant appeals the first stage summary dismissal of his postconviction petition in 

which he argues ineffective assistance by appellate counsel for failing to raise a facial 

substantive due process constitutional challenge to the Illinois Sex Offender Registration Act 

(Act) (730 ILCS 150/6 (West 2014)). On direct appeal from defendant’s conviction under the 

Act for failing to register his change of address, appellate counsel raised various constitutional 

challenges arguing the Act (1) imposed an ex post facto punishment in violation of the United 
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States and Illinois Constitutions (U.S. Const. art. I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2) 

constituted cruel and unusual punishment in violation of the eighth amendment of the United 

States Constitution (U.S. Const. amend. VII); and (3) violated the proportionate penalties clause 

of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). See People v. Thomas, 2017 IL App 

(1st) 150403-U. Defendant’s constitutional challenges were unsuccessful and defendant’s 

conviction was affirmed by this court. See id. Defendant subsequently filed his first 

postconviction petition alleging ineffective assistance by appellate counsel for failing to argue on 

direct appeal the Act’s registration requirements violated due process, the proportionate penalties 

clause, and ex post facto principles. Defendant’s petition was summarily dismissed by the trial 

court at first stage proceedings. Defendant appealed the dismissal arguing only that appellate 

counsel was ineffective for failing to raise his facial substantive due process challenge to the Act. 

For the reasons set forth below we affirm the trial court’s judgment. 

¶ 3 BACKGROUND

¶ 4 Defendant, Edmond Thomas, was convicted of aggravated criminal sexual abuse in 1992 

for displaying a gun and forcing a sixteen-year-old victim to perform a sex act on him for which 

he was sentenced to six years’ imprisonment. As a result of his conviction, defendant was 

subject to the Illinois Sex Offender Registration Act which, among other things, requires sexual 

predators and certain sex offenders to register with police when they change their address. 

¶ 5 In March 2014, defendant was arrested for failing to register his change of address with 

Chicago police as required under the Act. Following a bench trial, defendant was convicted of 

the charge and sentenced to six years’ imprisonment. Defendant subsequently appealed his 

conviction. See Thomas, 2017 IL App (1st) 150403-U. We incorporate our prior order by 

reference and do not restate the facts adduced at trial resulting in defendant’s conviction for 
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failing to register his change of address as these details are not relevant to our decision here. See 

id. 

¶ 6 In the direct appeal of his conviction, defendant challenged the Act’s entire statutory 

scheme as facially unconstitutional. Defendant specifically argued the Act (1) imposed an ex 

post facto punishment in violation of the United States and Illinois Constitutions (U.S. Const. art. 

I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2) constituted cruel and unusual punishment in 

violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VII);

and (3) violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, 

art. I, § 11). See Thomas, 2017 IL App (1st) 150403-U, ¶ 7. This court affirmed the trial court’s 

judgment finding defendant failed to timely register with police after changing his address and 

further concluded his constitutional challenges to the Act failed. Id. With respect to defendant’s 

constitutional challenges, this court concluded defendant did not show the registration 

requirements under the Act were punitive where all defendant’s arguments on direct appeal 

hinged on the requirements of the Act constituting punishment. Id. at ¶ 25. 

¶ 7 Post-Conviction Petition 

¶ 8 Defendant subsequently filed his first postconviction petition alleging ineffective 

assistance by appellate counsel for failing to argue on direct appeal the Act’s registration 

requirements violated due process rights, the proportionate penalties clause, and ex post facto

principles. The circuit court summarily dismissed the petition at first stage proceedings finding 

the petition lacked an arguable basis in law, was patently without merit, and failed to state the 

gist of a constitutional deprivation. Thereafter the court filed a written order of dismissal. 

Defendant’s late notice of appeal was permitted. This appeal followed. 

¶ 9 ANALYSIS

¶ 10 Post-Conviction Hearing Act 
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¶ 11 Defendant appeals the summary dismissal of his postconviction petition at first stage 

postconviction proceedings which we review de novo. People v. Patterson, 2018 IL App (1st) 

160610, ¶ 14. 

¶ 12 The Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (West 2016), provides a 

mechanism for collateral attack of a conviction or sentence allowing for inquiry into 

constitutional claims relating thereto which were not, and could not be, adjudicated during the 

trial or determined on appeal. People v. House, 2019 IL App (1st) 110580-B, ¶ 25. The PostConviction Hearing Act sets forth a three stage process for hearing constitutional claims. 

Patterson, 2018 IL App (1st) 160610, ¶ 15. Defendant’s claim was dismissed at first stage 

proceedings. 

“At the first stage, the circuit court independently reviews the petition and 

determines whether the petition is frivolous or patently without merit. [Citations.] 

A petition may be summarily dismissed at the first stage as frivolous and patently 

without merit ‘only if the petition has no arguable basis either in law or in fact.’ 

[Citation.] A petition lacks an arguable basis in law or fact if it is based on ‘an 

indisputably meritless legal theory or a fanciful factual allegation.’ [Citation.] 

Because most petitions at the first stage are drafted by defendants with little legal 

knowledge or training, a defendant need only present a limited amount of detail in 

the petition to survive summary dismissal by the circuit court. [Citation.] That is, 

defendants only need to set forth the ‘gist’ of an arguably constitutional claim to 

meet the relatively low factual threshold to satisfy the first stage under the Act. 

[Citation.]” Id. 
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¶ 13 A petition lacking an arguable basis in law or fact is one based on an indisputably 

meritless legal theory or fanciful allegations such as a claim completely contradicted by the 

record or based on fantastic or delusional facts. People v. Brown, 236 Ill. 2d 175, 185 (2010). 

¶ 14 In first stage postconviction proceedings the defendant is not required to make “a 

substantial showing of a constitutional violation” nor is the defendant required to “demonstrate” 

or “prove” the alleged constitutional violation to avoid dismissal. People v. Tate, 2012 IL 

112214, ¶ 19. The allegations in the petition are to be taken as true and liberally construed. 

Brown, 236 Ill. 2d at 184. 

¶ 15 Defendant argues his “appellate counsel was arguably ineffective for failing to argue that 

the [Act’s] registration requirements violated [defendant’s] due process rights.” Defendant 

contends: 

“The requirements and restrictions are neither narrowly tailored nor rationally 

related to the State’s interest in protecting the public from sex offenders. As a 

result, appellate counsel was arguably ineffective for failing to raise that issue and 

this Court should advance [defendant’s] petition to the second stage.” 

¶ 16 Defendant further argues, 

“Here, appellate counsel’s performance was objectively unreasonable for failing 

to argue that the [Act’s] registration requirements violate [defendant’s] due 

process rights. This error prejudiced [defendant] because there is a reasonable 

probability that [defendant] would have been successful and, even [if] he was not 

successful on direct appeal, counsel failed to preserve the issue so that [defendant] 

could appeal to the higher courts.” 
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¶ 17 Contrary to defendant’s claims, as explained below, we do not find counsel was 

ineffective for failing to raise defendant’s substantive due process challenge to the Act on direct 

appeal. 

¶ 18 Ineffective Assistance of Counsel

¶ 19 Claims alleging ineffective assistance of counsel are governed by the standards set forth 

in Strickland v. Washington, 466 U.S. 668 (2004). People v. Veach, 2017 IL 120649, ⁋ 29. “At 

the first stage of postconviction proceedings under the [Post-Conviction Hearing] Act, a petition 

alleging ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s 

performance fell below an objective standard of reasonableness and (ii) it is arguable that the 

defendant was prejudiced.” People v. Hodges, 234 Ill. 2d 1, 17 (2009). 

“ ‘[A] defendant must show that counsel’s performance was objectively 

unreasonable under prevailing professional norms and that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” ’ [Citation.] ‘A “reasonable probability” 

is defined as “a probability sufficient to undermine confidence in the outcome.” ’ 

[Citation.] ‘A defendant must satisfy both prongs of the Strickland test and a 

failure to satisfy any one of the prongs precludes a finding of ineffectiveness.’ 

[Citation.]” Id. at ⁋ 30. 

¶ 20 To be effective, “appellate counsel ‘has no obligation to raise every conceivable 

argument which might be made, and counsel’s assessment of what to raise and argue will not be 

questioned unless it can be said that his judgment in this regard was patently erroneous.’ ” 

People v. Coleman, 168 Ill. 2d 509, 523 (1995) (quoting People v. Collins, 153 Ill. 2d. 130, 140 

(1992)). “If the issue underlying a defendant’s claim of ineffective assistance of appellate 

counsel is not meritorious, the defendant could not have suffered prejudice due to appellate 
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counsel’s failure to raise it. Coleman, 168 Ill. 2d at 523. “[A] court need not ‘address both 

components of the inquiry if the defendant makes an insufficient showing on one.’ ” People v. 

Montgomery, 192 Ill. 2d 642, 671 (2000). 

¶ 21 Our determination as to whether appellate counsel’s performance was ineffective under 

the Strickland analysis necessitates a review of defendant’s facial substantive due process 

challenge to the Act which he alleges counsel was deficient for not raising on direct appeal to 

determine if that claim is meritorious. Coleman, 168 Ill. 2d at 523. 

¶ 22 It is important to highlight that, on direct appeal, appellate counsel did raise several 

constitutional challenges to the Act all of which were unsuccessful. As previously stated, 

appellate counsel argued on direct appeal the Act was unconstitutional in that it (1) imposed an

ex post facto punishment in violation of the United States and Illinois Constitutions (U.S. Const. 

art. I, § 10, cl. 1) (Ill. Const. 1970, art. I, § 16); (2) constituted cruel and unusual punishment in 

violation of the eighth amendment of the United States Constitution (U.S. Const. amend. VII); 

and (3) violated the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, 

art. I, § 11). See Thomas, 2017 IL App (1st) 150403-U, ¶ 7. We again note, appellate counsel 

will not be deemed ineffective for failing to raise every conceivable argument on appeal and 

counsel’s judgment in determining which issues to raise will not be questioned where that 

judgment was not patently erroneous. See Coleman, 168 Ill. 2d at 523. 

¶ 23 Given our decision in defendant’s direct appeal finding the Act does not constitute 

punishment and based on Illinois caselaw addressing similar constitutional challenges to the Act, 

we cannot say counsel’s performance was objectively unreasonable under prevailing professional 

norms for failing to raise defendant’s substantive due process claim on direct appeal nor do we 

find defendant suffered prejudice. See Hodges, 234 Ill. 2d at 17. 

¶ 24 Substantive Due Process Challenge 
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¶ 25 Defendant argues his appellate counsel was ineffective for failing to argue the Act’s 

reporting requirements violate substantive due process rights. 

¶ 26 As recited in Thomas, 2017 IL App (1st) 150403-U, ¶ 4, 

“The Act requires sexual predators and certain offenders to register in person with 

police when they change their address: 

‘If any person required to register under this Article lacks a fixed 

residence or temporary domicile, he or she must notify, in person, the 

agency of jurisdiction of his or her last known address within 3 days after 

ceasing to have a fixed residence and if the offender leaves the last 

jurisdiction of residence, he or she, must within 3 days after leaving 

register in person with the new agency or jurisdiction.’ 730 ILCS 150/6 

(West 2016). 

Sexual predators and certain sex offenders must 

‘provide accurate information as required by the Department of State 

Police. Such information shall include a current photograph, current 

address, current place of employment, the sex offender’s or sexual 

predator’s telephone number, including cellular telephone number, the 

employer’s telephone number, school attended, all e-mail addresses, 

instant messaging identities, chat room identities, and other Internet 

communications identities that the sex offender uses or plans to use, all 

Uniform Resource Locators (URLs) registered or used by the sex 

offender, all blogs and other Internet sites maintained by the sex offender 

or to which the sex offender has uploaded any content or posted any 

messages or information.’ 730 ILCS 150/3(a) (West 2016) 
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In addition to the registration requirement, ‘[t]he person shall pay a $100 initial 

registration fee and a $100 annual renewal fee to the registering law enforcement 

agency having jurisdiction. The registering agency may waive the registration fee 

if it determines that the person is indigent and unable to pay the registration fee.’ 

730 ILCS 150/3(c)(6) (West 2016). Certain individuals ‘adjudicated to be 

sexually dangerous and [are] later released or found to be no longer sexually 

dangerous and discharged, shall register for the period of his or her natural life. A 

sexually violent person or sexual predator shall register for the period of his or her 

natural life.’ 730 ILCS 150/7 (West 2016).

‘Any other person who is required to register under this Article shall be 

required to register for a period of 10 years after conviction or 

adjudication if not confined to a penal institution, hospital or any other 

institution or facility, and if confined, for a period of 10 years after parole, 

discharge or release from any such facility.’ Id.

Failure by a defendant to comply with these registration requirements results in an 

extension of the registration period ‘for 10 years.’ Id. Additionally, not abiding 

by these requirements constitutes a Class 3 felony. 730 ILCS 150/10(a) (West 

2016).” Thomas, 2017 IL App (1st) 150403-U, ¶ 4. 

¶ 27 Defendant’s claim of ineffective assistance of counsel on appeal is made only against 

appellate counsel and does not include trial counsel. Though defendant’s facial substantive due 

process arguments could have been but were not raised by trial counsel before the trial court, we 

initially note that these arguments, nevertheless, were not forfeited and could have been raised by 

appellate counsel on direct appeal. With respect to this point, our supreme court has held review 
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of a constitutional challenge to a criminal statute may be raised for the first time on appeal and is 

not forfeited. People v. Ligon, 2016 IL 118023, ¶ 9. 

¶ 28 Having concluding forfeiture would not have barred appellate counsel from raising 

defendant’s substantive due process claim on direct appeal, we turn to the manner in which the 

constitutionality of a statute is to be determined in order to assess whether appellate counsel was 

ineffective for failing to present the substantive due process arguments on behalf of defendant on 

direct appeal. 

¶ 29 It is well settled, 

“All statutes carry a strong presumption of constitutionality. [Citation.] To 

overcome this presumption, a party challenging a statute must clearly establish 

that it violates the constitution. [Citation.] This court will affirm a statute’s 

constitutionality if the statute is reasonably capable of such an interpretation. 

[Citation.]” People v. Johnson, 225 Ill. 2d 573, 584 (2007). 

¶ 30 “The burden is particularly heavy where, as here, the party raises a facial challenge, 

asserting that there is no circumstance in which the statute is valid.” People v. Pepitone, 2018 IL 

122034, ¶ 12. “A court will affirm the constitutionality of a statute *** if it is reasonably 

capable of such a determination and will resolve any doubts as to the statute’s construction in 

favor of its validity.” (Internal quotation marks omitted.) People v. Wells, 2019 IL App (1st) 

163247, ¶ 46. Whether a statute is unconstitutional is a question of law reviewed de novo. 

Johnson, 225 Ill. 2d at 584. 

¶ 31 Defendant argues the Act’s reporting requirements violate constitutional guarantees of 

due process required under the fourteenth amendment of the United States Constitution and 

article 1, section 2, of the Illinois Constitution. “The fourteenth amendment to the United States 

Constitution (U.S. Const., amend. XIV) and article 1, section 2, of the Illinois Constitution (Ill. 
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Const. 1970, art. 1, § 2) both provide that no person shall be deprived of life, liberty, or property 

without due process of law.” Pepitone, 2018 IL 122034, ¶ 13. 

¶ 32 Defendant’s claim is a substantive due process challenge. Substantive due process “bars 

governmental action that infringes upon a protected interest when such action is itself arbitrary;” 

in other words “ ‘the deprivation at issue is constitutionally invalid in and of itself, irrespective 

of the process leading up to it.’ ” Id. (quoting People v. Cardona, 2013 IL 114076, ¶ 17). 

¶ 33 “Where a statute is challenged on due process grounds, the initial step of our analysis is 

to determine whether the statute restricts or regulates a liberty interest and whether that liberty 

interest is a fundamental right.” Pepitone, 2018 IL 122034, ¶ 14. Where a statute infringes on a 

fundamental right, strict scrutiny is applied under which “the statute must serve a compelling 

governmental interest and be narrowly tailored to serve that interest.” People v. Avila-Briones, 

2015 IL App (1st) 132221, ¶ 71. 

¶ 34 Where a fundamental right is not implicated, the rational-basis test is applied where “the 

statute must simply bear a rational relationship to any legitimate government interest.” Id. ¶ 72. 

This “rational basis review requires us to ask two questions: (1) whether there is a legitimate 

state interest behind the statutes; and, if so, (2) whether the statutes are rationally related to that 

legitimate interest.” Id. ¶ 81. “While the rational basis test is not toothless [citations], it remains 

highly deferential to the findings of the legislature.” (Internal quotation marks omitted.) 

Pepitone, 2018 IL 122034, ¶ 17. 

¶ 35 Here defendant claims the Act’s regulations and restrictions cannot survive under rational 

basis or strict scrutiny review. We address each of defendant’s arguments in turn. 

¶ 36 Fundamental Right and Strict Scrutiny

¶ 37 Defendant contends fundamental rights are implicated because the Act “arguably 

constitutes punishment and, as a result, arguably affects a person’s fundamental rights to privacy 
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and to be free from arbitrary confinement” and, as such, the Act should be subject to a strict 

scrutiny analysis. (Emphasis added.) Defendant’s argument for application of strict scrutiny 

hinges on the Act’s registration requirements being a form of punishment—an issue this court 

resolved to the contrary in defendant’s direct appeal. 

¶ 38 In defendant’s direct appeal we rejected defendant’s constitutional challenges based on 

the Act constituting punishment stating: 

“Though our case law has repeatedly held registration requirements for sex 

offenders are not forms of punishment, defendant contends the expansion of the 

Act’s registration requirements in 2013 tipped the Act over the line into a form of 

punishment. We find defendant fails to support this argument.

 The legislative intent behind the Act was not punitive, but rather ‘to create 

an additional measure of protection for children from increasing incidence of 

sexual assault and child abuse.’ [Citation.] Even when legislative intent is not to 

create a punitive scheme, the effect of a statute may be so punitive as to negate 

the legislature’s intent. [Citation.]” Thomas, 2017 IL App (1st) 150403-U, ¶¶ 16-

17. 

¶ 39 To that end, we further found the Act had no punitive effect and explained that defendant 

had not shown how any amendments to the Act would alter this determination. Id. ¶¶ 17-25. 

Moreover, given the breadth of Illinois case law concluding the Act does not violate substantive 

due process including Illinois Supreme Court precedent by which this court is bound, we cannot 

find defendant’s appellate counsel’s decision not to raise the argument on direct appeal fell 

below an objective standard of reasonableness as necessary to be ineffective. See Hodges, 234 

Ill. 2d at 17. 
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¶ 40 Furthermore, defendant acknowledges Illinois cases holding the Act “does not violate due 

process because it does not constitute punishment or affect a fundamental right” but argues those 

cases stemmed from our supreme court’s decision in People v. Malchow, 193 Ill. 2d 413 (2003), 

finding the Act’s requirements did not constitute punishment. He notes Malchow did not look at 

the current Act’s restrictions and requirements which he contends “are much more onerous” and 

do not “comply with substantive due process.” 

¶ 41 In Malchow, the court referenced its finding in People v. Adams, 144 Ill. 2d 381 (1991), 

upholding an earlier version of the Act having concluded the Act’s registration requirement did 

not constitute punishment. Malchow, 193 Ill. 2d. at 419. There the court concluded “the 

legislature’s intent in requiring registration of sex offenders was to create an additional measure 

of protection for children from increasing incidence of sexual assault and child abuse.” Id. at 

420 (citing Adams, 144 Ill. 2d at 387). The Malchow court similarly concluded the intent of the 

Sex Offender and Child Murderer Community Notification Law (Notification Law)1 was to 

protect the public, not punish sex offenders and child murderers. Id. The court went on to 

analyze the seven factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), for 

determining whether an act has a punitive effect and concluded the effect of the Notice Law was 

not punitive so as to negate the legislature’s non-punitive intent. Malchow, 193 Ill. 2d at 421-24. 

As noted above, this court, on direct appeal, undertook an identical analysis of the MendozaMartinez factors with respect to the updated version of the Act at issue in this case and similarly 

1 The Illinois Sex Offender Community Notification Law, 730 ILCS 152/101 et seq., 

requires state police to maintain a sex offender database for the purpose of identifying sex 

offenders and making information about them available to persons specified in the statute 

and to the public and works in tandem with the Act. See People v. Jones, 2018 IL App 

(1st) 151307, ¶ 52. 
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concluded the relevant version had no punitive intent or effect. See Thomas, 2017 IL App (1st) 

150403-U, ¶¶ 17-25. We see no basis for deviating from Malchow and its progeny as defendant 

requests and cannot say appellate counsel was deficient for failing to raise this constitutional

claim. 

¶ 42 Furthermore, following Malchow, our supreme court in In re J.W., 204 Ill. 2d 50, 67 

(2003), stated the 2000 version of the Act’s registration requirements did not affect a 

fundamental right. Id. Thereafter, the court in People v. Cornelius, 213 Ill. 2d 178, 203-04 

(2004), concluded dissemination of the defendant’s information over the internet under the 

Notification Law did not implicate a fundamental right necessitating strict scrutiny where the 

fundamental right claimed was damage to one’s reputation though presented as invasion of 

privacy. Id. 

¶ 43 We also note other Illinois appellate court cases similarly finding post-Malchow versions 

of the Act’s statutory scheme is not punitive and does not affect a fundamental right. See People 

v. Rodriquez, 2019 IL App (1st) 151938-B, ¶ 21 (citing People v. Fredericks, 2014 IL App (1st) 

122122, ¶ 58, and In re A.C., 2016 IL App (1st) 153047, ¶¶ 77-78 (analyzing 2012 and 2014 

versions of the Act respectively since Malchow and concluding, as those cases had, the changes 

to the Act did not render the Act punitive); see also Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 

73-81 (commenting “the weight of authority shows that laws similar to the [2012 Act’s statutory 

scheme] do not affect fundamental rights and concluding “ ‘ the right to be free from a lifetime 

of burdensome, intrusive monitoring and restrictions’ ” is not a fundamental right warranting 

strict scrutiny review of the 2012 version of the Act); see also Pollard, 2016 IL App (5th) 

130514, ¶¶ 32-37 (concluding the Act’s statutory scheme does not impact a defendant’s 

fundamental rights). 
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¶ 44 We are not persuaded by defendant’s citation to People v. Cetwinski, 2018 IL App (3d) 

160174, a case that delt with an eighth amendment as-applied constitutional challenge to the Act. 

As highlighted by defendant, the Third District in Cetwinski correctly points out “the [Act’s] 

statutory scheme has been amended numerous times since Malchow, with additional 

requirements and restrictions placed upon sex offenders[.]” Id. at ¶ 51. Notwithstanding, as this 

court pointed out in People v. Jones, 2018 IL App (1st) 151307, ¶¶ 52-53, our supreme court 

found the Act is not punitive in nature and repeatedly rejected claims to the contrary explaining 

we must follow the supreme court’s precedent. Id. 

¶ 45 We also reject defendant’s claim the Act violates a fundamental privacy right. Defendant 

cites our supreme court’s decision in Cornelius, 213 Ill. 2d 178 (2004), and acknowledges “prior 

decisions of Illinois courts have rejected the argument that a sex offender has a privacy interest 

in his registry information, or that the sex offender database unfairly infringes on the right to 

privacy[.]” However, defendant contends these cases dealt with prior versions of the Act “at a 

time when our reliance on the internet and social media were nowhere near as prevalent” and 

involved versions of the Act that were “far more limited in scope[.]”

¶ 46 Ultimately, defendant’s concern with the dissemination of his information, some of 

which he grants is already publicly available, is that “[h]e is branded a sex offender for the rest 

of his life, and the harm to his reputation, including his ability to maintain employment or 

function normally in society, is manifest by the severity and duration of the Act’s restrictions.” 

¶ 47 While the Act may have changed as defendant suggests, our supreme court’s rationale in 

Cornelius remains applicable. There, the court was not persuaded by the defendant’s arguments 

concerning internet access making the defendant’s information more easily accessible 

concluding: 
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“defendant does not have a cognizable privacy interest in his sex offender registry 

information. Defendant ‘engaged in conduct that lowered the privacy bar *** [as] 

[h]is acts spawned a criminal prosecution culminating in a public record that 

contains the challenged information.’ ” Id. at 196. 

¶ 48 Moreover, in analyzing the defendant’s substantive due process claim in Cornelius, the 

court determined the defendant’s “fundamental right” argument was really an argument the 

dissemination of his information would damage his reputation. Id. at 204. As the quote above 

from defendant’s brief reveals, this is the very argument defendant undertakes in this appeal 

despite it being rejected in Cornelius. The court in Cornelius concluded, “the right to be free 

from the shame, stigma and embarrassment resulting from a conviction for sexually abusing a 

child is not the kind of fundamental right contemplated by our constitution” and thus strict 

scrutiny in not applicable.” Id. As to this issue, we are bound to follow the decisions of our 

supreme court. See Gatreaux v. DKW Enterprises, LLC, 2011 IL App (1st) 103482, ¶ 23. 

Where there is no identifiable basis for application of a strict scrutiny analysis of the Act, 

defendant’s appellate counsel cannot be deemed deficient for failing to raise such a claim. See 

Coleman, 168 Ill. 2d at 523 (holding a claim of ineffective assistance of counsel fails where the 

issue underlying that claim is not meritorious such that no prejudice was suffered due to 

counsel’s failure to raise it). 

¶ 49 Rational Basis Test

¶ 50 Having found no fundamental right implicated by the Act so as to trigger strict scrutiny 

review, we turn to defendant’s allegation appellate counsel was deficient for not arguing on 

appeal the Act fails under the rational basis test. Defendant argues that even if a fundamental 

right is not implicated by the Act, its “onerous restrictions *** do not achieve the government[’]s 
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interest in protecting the public from sex offenders.” Defendant does not contend the Act serves 

no legitimate interest, only that its restrictions do not achieve that interest. 

¶ 51 The test here is whether the Act’s restrictions are “rationally related to the legitimate state 

interest.” See Avila-Briones, 2015 IL App (1st) 132221, ¶ 81; see also Pepitone, 2018 IL 

122034, ¶ 19 (explaining that where the defendant concedes a legitimate interest by the 

legislature, as is the case here, the only dispute is whether the requisite constitutional nexus 

exists—a rational relation between the Act’s aim and its means). 

¶ 52 Defendant specifically argues “the vast amount of information collected and disseminated 

by [the Act] is not rationally related to the goal of protecting the public.” However, “the rational 

basis test does not require narrow tailoring; it only requires rationality.” Id. at ¶ 30. Nor does 

the rational basis test require the means be the best means of accomplishing the legislature’s 

intent. Pollard, 2016 IL App (5th) 130514, ¶ 42. “As long as there is a conceivable basis for 

finding a rational relationship, the law will be upheld.” (Internal quotation marks omitted.) 

People v. Parker, 2016 IL App (1st) 141597, ¶ 80. 

¶ 53 Defendant has not demonstrated the Act’s registration and notification requirements 

could be found to be devoid of any rational basis as would be necessary for his ineffective 

assistance of counsel argument to have merit. Moreover, given that Illinois courts have 

repeatedly held the Act’s provisions do not violate substantive due process under rational basis 

review we cannot say appellate counsel was objectively unreasonable in not making this claim. 

See Cornelius, 213 Ill. 2d at 204-05 (finding under the rational basis test, the notification 

provisions of the 2002 version of the Act bore a rational relationship to the purpose of the Act 

and Notification Law—to assist law enforcement and to protect the public from sex offenders—

stating “we find nothing unreasonable in the methods of serving the intended purposes of the 

statutes ***[concluding] there is a rational relationship between the disclosure of sex offender 
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registration information via the Internet and the goals of protecting the public and assisting law 

enforcement.”); Avila-Briones, 2015 IL App (1st) 132221, ¶ 84 (finding rational basis for the Act 

and Notification Laws to “help law enforcement and private individuals keep track of sex 

offenders by providing information about their presences and offenses.”); In re A.C., 2016 IL 

App (1st) 153047 ¶¶ 78-82 (finding the Act’s registration and notification requirements 

rationally related to a legitimate state interest even where a juvenile offender was at issue). 

¶ 54 This court is not persuaded that any of the changes to the Act highlighted by defendant 

since these cases finding a rational basis nexus would change this determination. Defendant 

argues, 

“now, a sex offender’s contact information, email and internet address, 

employment information, and school history are made available to school boards, 

colleges, libraries, public housing authorities, and volunteer organizations dealing 

with children.” 

¶ 55 Defendant also notes that now, an offender’s license plate numbers as well as identifying 

marks on their body can be obtained upon request. Information collected includes an offender’s 

contact information, his employer’s contact information, information related to his internet 

usage, the terms and conditions of his parole, and specific information about his offenses and the 

complaining witnesses. We cannot conclude nor does defendant argue how any of these

expansions are not rationally related to the government’s legitimate interest in protecting the 

public from sex offenders. This is particularly true with respect to an offender’s digital footprint 

because, as defendant points out, we live in a time when our reliance on the internet and social 

media is more prevalent. 

¶ 56 Defendant also argues there can be no rational basis nexus under the Act because most 

convicted sex offenders do not sexually reoffend citing various studies including published 
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findings from the Sex Offender Registration Task Force established by the General Assembly 

and interpreted by the Third District in People v. Tetter, 2018 IL App (3d) 150243, ¶ 78, as 

calling into question the efficacy of the Act’s statutory scheme. 

¶ 57 However, this argument cannot succeed. As stated by our supreme court in Pepitone in 

its discussion of the rational basis test, 

“The legislature’s judgments in drafting a statute are not subject to judicial fact 

finding and may be based on rational speculation unsupported by evidence or 

empirical data. [Citation.] If there is any conceivable set of facts to justify the 

statute, it must be upheld. [Citation.] This court will not second-guess the 

wisdom of the legislative enactments or dictate alternative means to achieve the 

desired result. [Citation.]” (Internal quotation marks omitted.) Pepitone, 2018 IL 

122034, ¶ 17. 

¶ 58 Furthermore, as the Pepitone court pointed out in response to the defendant’s citation to 

empirical studies regarding recidivism rates of sex offenders as argument for the required 

constitutional nexus not having been met, 

“The problem for the defendant is that, regardless of how convincing the social 

science may be, the legislature is in a better position than the judiciary to gather 

and evaluate data bearing on complex problems.” (Internal quotation marks 

omitted.) Id. at ¶ 24. 

¶ 59 As Illinois caselaw does not support defendant’s substantive due process argument under 

the rational basis test, we do not find defendant’s appellate counsel’s decision not to raise the 

argument on direct appeal could have fallen below an objective standard of reasonableness. See 

Hodges, 234 Ill. 2d at 17. Accordingly, we find defendant failed to make the required showing 
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of a gist of a constitutional claim of ineffective assistance of appellate counsel in his 

postconviction petition. 

¶ 60 CONCLUSION

¶ 61 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. 

¶ 62 Affirmed.