201 6 IL App (2d) 1 403 58 No. 2

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- 03 58 O pinion filed March 22, 2016

_____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff

- Appellee, ) ) v. ) No. 1 1

- C F

- 2356 ) CRAIG ARMSTRONG , ) Honora ble ) Kathryn E. Creswell , Defendant

- Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE BURKE delivered the judgment of the court , with opinion

. Presiding Justic e Schostok and Justice Jorgensen concurred in the judgment and opinion

. O PINION ¶ 1 Defendant, Craig Armstrong, entered a negotiated plea of guilty to one count of failing to register as a sex offender as required by section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/ 6 (West 201 0 )) and was sentenced to three years in prison. The trial court denied his postjudgment motion. On appeal, this court remanded summarily. On remand, defendant proceed ed pro se and filed a postjudgment motion , which the trial court denied

. On appeal, d efendant contends that his t rial counsel was ineffective for advising him to plead guilty even though the conviction on which his status as a sex offender depended w as not actually of a sex offense und er the Act (see 730 ILCS 150/ 2 (West 199 6)). We reverse and remand.2016 IL App (2d) 140358

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- ¶ 2 On October 27, 2011, the State filed a one - count indictment alleging that, on Septe m ber 23, 2011, defendant, a sex offender, violated section 6 of the Act by knowingly fail ing to complete his annual registration within one year of his last annual registration date , September 22, 2010. During discovery, defendant mailed the trial judge a handwritten letter, dated November 21, 2011. T he letter attached a copy of a sex

- offender registration form, dated September 20, 2010, and signed by defendant and Detective Master Sergeant Jack Bridson of the Bellwood p olice d epartment as the registering agent. The form listed defendant’s “[r]esident address” as 889 W. North Avenue in Villa Park; stated that, on Dece mber 22, 1997, in De Kalb County, defendant had been convicted of unlawful restraint (720 ILCS 5/10

- 3 (a) (West 1996)); and stated further that, at the time of the offense, defendant had been 27 years old and the victim had been 17 years old

. Defendant sig ned a statement on the form acknowledging that h e had the duty to register on or before September 23, 2010. ¶ 3 On July 11, 2012, the parties appeared in court. Defendant was represented by counsel , who had entered his appearance on June 6, 2012

. He is the a ttorney whose alleged ineffectiveness is the subject of this appeal. The parties presented an agreement under which the State would reduce the charge from a Class 2 felony to a Class 3 felony ( by withdrawing the alleg ation of a prior conviction); defendan t would plead guilty; and the State would recommend a three

- year prison sentence. The prosecutor noted that among defendant’s prior offenses was the 1997 conviction of unlawful restraint, a Class 4 felony that (purportedly) triggered his obligation under the Act to register. ¶ 4 After the judge admonished defendant, the prosecutor provided the factual basis for the charge. The State would submit certified copies of defendant’s conviction in c ase No. 97

- CF

322, in De Kalb County, of “unlawful restraint, within it the elements of the victim being under2016 IL App (2d) 140358

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- the age of 18 and the sexual component requiring the defendant to register as a sex offender pursuant to the [Act].” Further, Officer Garcia of the Villa Park police department would testify that, on December 22, 2010, defendant came to the police station because he had changed his residence to Villa Park and that “[o]n those forms, the annual registration date was to be September 22 nd of 2011.” Finally , Detective Krupiczowicz of the Villa Park police department would testify that , as of early October 2011, defendant had not yet registered in person with the Villa Park police department; that Krupiczowicz had been assigned to locate defendant; and that , on October 7, 2011, he found defendant, who then admitted that he had made “a mistake” by failing to come in to register as required. ¶ 5 The trial court accepted defendant’s plea and sentenced him to three years’ imprisonment. Defendant did not file a postjudgment motion. On his first appeal, we summarily remanded the cause so th at defendant could file a postjudgment motion and his attorney could file a proper certificate of compliance with Illinois Supreme Court Rule 604(d) (eff. Feb. 6, 2013). People v. Armstrong , No. 2

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- 0896 ( Nov. 13, 2013 ) (minute order). ¶ 6 On remand, defendant proceed ed pro se and filed a lengthy postjudgment motion that did not allege that the 1997 conviction of unlawful restraint was not of a sex offense , or that counsel had been ineffective for allowing him to plead guilty despite th is fata l defect in the charge

. 1 The trial court denied the motion, and defendant appealed.

1 Probably unnecessarily, defendant also filed a certificate of his own compliance with Rule 604(d), reciting that he had examined the trial court file and the report of proceedings and had made any amendments that were necessary for an adequate presentatio n of any defects in the proceedings. At the hearing on defendant’s motion, the trial judge stated that the hearing could not proceed , because the certificate did not strictly comply with the rule. Apparently, during a2016 IL App (2d) 140358

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- ¶ 7 On appeal, defendant raises one contention of error: his attorney was ineffective for advising defendant to plead guilty to failing to register under the Act. Defendant argues that, had
t rial counsel examined the record in the 1997 case, he would have learned that defendant could not be guilty of failing to register, a s his conviction of felony unlawful restraint was not a basis under the Act t o adjudicat e him a sex offender

. U nder t he Act , defendant’s conviction of felony unlawful restraint was of a sex offense only if the victim was under 18 years old and defendant

w as not the victim’s parent. See 730 ILCS 150/2(A)(1)(a), (B)(1.5) (West 1996). 2 He contends that, in the 1997 case, the trial court never found those elements, and he notes that the 1997 judgment did not or der him to register under the Act. Therefore, d efendant concludes, whatever he might have thought or done since 1997, he was never convicted of an offense that would require him to register under the Act

— and, as a consequence , his attorney erred prejudicially by
short recess, defendant filed a new certificate that the judge found sufficient, and the hearing proceeded to a conclusion. However, it appears from the text of the rule that a pro se defendant need not file any Rule 604(d) certificate. See Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013) (“ The d efendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant *** to ascertain [the] defendant’s contentions of error *** .” (Emphasis added.)). Thus, even if defendant did not file a second c ertificate that fully tracked the rule’s pertinent language, we do not concern ourselves with his understandable failure to certify that he had consulted with himself to ascertain his contentions of error.

2 Defendant contends that, in addition to these tw o prerequisites, the offense also had to be sexually motivated. Defendant is mistaken. As we note later, the “sexually motivated” element was not added to section 2(B)(1.5) of the Act until 2006, and it did not apply retroactively to defendant’s 1997 off ense.2016 IL App (2d) 140358

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- inducing him to plead guilty to an offen se of which he could not have been convicted after a trial. Defendant concedes that he has forfeited this issue by failing to raise it in a postjudgment motion (see Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013) ), but he asks that we address it as plain error

. ¶ 8 The State responds that, should this court overlook forfeiture , defendant has not shown that t rial counsel was ineffective. The State agrees that, w hen defendant was convicted of felony unlawful restraint, he was required to register under the Act only if (1) the victim was under 18 years old; and (2) he was not her parent. See 730 ILCS 150/2(A)(1)(a), (B)(1.5) (West 1996). The State notes that defendant raises no claim as to the second prerequisite. The State reasons that it did not need proof beyond a reasonable doubt of the victim’s age (see 730 ILCS 150/2(B)(1.5) (West 1996 ) ; People v. Cardona , 2012 IL App (2d) 100542, ¶ 43 ) and that evidence in the record, including the sex

- offender registration form that defendant filled out, provide d the proof

. Thus, the State concludes, counsel was not ineffective for obtaining a plea agreement under which defendant avoided a trial , a conviction on a more serious charge, and a potentially longer sentence

. ¶ 9 We first address forfeiture. Under Rule 604(d) , “[u]pon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.” Ill. S. Ct. R. 604(d) (eff. Feb. 6, 2013). Defendant acknowledges the rule but requests that we review his claim for plain error under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967 )

. For the following reasons, we elect to do so. ¶ 10 We first note that , as defendant presumes, the forfeiture provision of Rule 604(d) does not foreclose a claim of plain error under Rule 615(a). See People v. Fuller , 205 Ill. 2d 308,
322

- 23 (2002); People v. McCrear y , 393 Ill. App. 3d 402, 405

- 06 (2009).2016 IL App (2d) 140358

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- ¶ 11 Here, defendant contends that his trial attorney ’s deficient representation induced him to plead guilty to an offense of which he would necessarily have been acquitted after a trial

. Applying forfeiture wo uld risk permitting a serious injustice in the form of a baseless conviction

. As this wou ld amount to plain error, we address his claim. See People v. Strawbridge , 404 Ill. App. 3d 460, 462 (2010). ¶ 12 To establish ineffective assistance in the context of a judgment based on a guilty plea, the defendant must show that (1) his trial counsel’s perf ormance was objectively unreasonable; and (2) it is reasonably probable that, absent counsel’s deficient performance, the defendant would
not have pleaded guilty and would have insisted on going to trial. People v. Rissley , 206 Ill. 2d 403, 457 (2003); se e generally Strickland v. Washington , 466 U.S. 668 (1984). ¶ 13 Defendant contends that t rial counsel performed deficiently for failing to examine the proceedings and the judgment in the 1997 case that resulted in his conviction of unlawful restraint, the pred i cate for his obligation to register under the Act. Defendant argues that, had counsel acquainted himself with the 1997 case, he would have realized that (1) unlawful restraint , as charged and adjudicated, was not a triggering offens e under the Act (see 7 30 ILCS 150/2(B) (1.5) (West 1996)); and (2) the judgment did not order defendant to register under the Act. Thus, he would not have negotiated the plea bargain, because, at a trial, the State could not have pr evailed

. ¶ 14 To address defendant’s argument, we must examine both the Act, as it read at the time of defendant’s conviction of unlawful restraint , and the proceedings in the 1997 case. We start with the Act as it read in 1997, when defendant pleaded guilty to unlawfu l restraint and was sentenced accordingly. Although the Act has been amended since, defendant’s status as a sex offender (or not) and his concomitant obligation to register (if any) must be decided based on the law as it2016 IL App (2d) 140358

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- existed at the time of the judgmen t that allegedly established his status as a sex offender. Defendant would not be entitled to the retroactive benefit of any amendments to the Act that added further prerequisites to being adjudicated a sex offender. See People v. Johnson , 225 Ill. 2d 57 3, 580

- 81 (2007); People v. Black , 394 Ill. App. 3d 935, 942 (2009); People v. Craig , 374 Ill. App. 3d 375, 377 (2007) ( all holding that 2006 amendment to Act that made unlawful restraint a triggering offense only if it was sexually motivated did not benef it defendant s who

w ere convicted of unlawful restraint before amendment took effect). In 1997, unlawful restraint triggered a duty to register under the Act only if (1) the victim was under 18 years of age; (2) the defendant was not a parent of the victim ; and (3) the offense was committed on or after January 1, 1996. 730 ILCS 150/2(B)(1.5) (West 1996). We now turn to the 1997 case, on which defendant relies in conten ding that his conviction did not obligate him to register under the Act

. ¶ 15 On October 6, 1 997, defendant was charged by complaint with (1) unlawful restraint, in that, on October 5, 1997, he detained Stephanie P. by blocking the doorway of his apartment and, when she reached for the doorknob, push ing her onto the bed, chok ing her , remov ing her shirt and bra , and ejaculat ing onto her chest ; and (2) domestic battery (720 ILCS 5/12

- 3.2(a)(2) (West 1996)) by placing his hands on her breasts. The complaint did not refer to Stephan ie P. ’s age. On October 24, 1997, the State filed an information reit erating the se charges and adding (3) domestic battery ( id. ) based on choking Stephanie P. ; and (4) aggravated criminal sexual abuse (720 ILCS 5/12

- 16(a)(2) (West 1996)) based on sexual contact causing bodily harm. Again, the charges did not refer to the v ictim’s age. ¶ 16 On October 24, 1997, the trial court held a preliminary hearing and arraignment.
De Kalb police officer Mark Tehan testified that on October 6, 1997, Stephanie P. t old him of the2016 IL App (2d) 140358

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- events on which the charges were based . Tehan said nothing about Stephanie P.’s age. The trial court found probable cause and a rraigned d efendant. He plea ded not guilty. ¶ 17 On December 22, 1997, the parties presented an agreement under which defendant would plead guilty to unlawful restraint and the State would dis miss the other charges and recommend a sentence of one year’s imprisonment. The judge admonished defendant , stating , as pertinent here , t hat his offense was a Class 4 felony punishable by 1 to 3 years ’ imprisonment f ollowed by
a year of mandatory supervis ed release, or by up to 30 months’ probation or conditional discharge. The judge said nothing about the Act or an obligation to register as a sex offender. ¶ 18 The prosecutor then provided the following factual basis

. Defendant committed unlawful restraint “ in that he blocked the doorway of his apartment and restrained [Stephanie P.] against her will for a period of time, and in so doing did not allow her to leave the apartment. ” The judge accepted the plea

. The written judgment entered that day did not ord er defendant to register under the Act (or mention the Act at all) or reference the victim’s age. ¶ 19 Defen dant did not appeal directly. On May 20, 2014, he filed a pro se petition for relief under section 2

- 1401 of the Code of Civil Procedure (735 ILCS 5/2

- 1401 (West 201 4 )) against the judgment. The petition alleged that the State had fraudulently altered the plea agreement by adding a requirement to regis t er under the Act

. It alleged further that, while in prison, defendant was told that he would have t o sign a document obligating him to register under the Act, or he would not be released. ¶ 20 The petition attached copies of correspondence between Krupiczowicz and the Du Page County circuit clerk’s office. By a fax sent early in October 2011 , Krupiczowicz stated that he

was investigat ing possible charges based on a “sex offender registration violation [by] [defendant].” He referred to the 1997 judgment and requested “copies of any court documents2016 IL App (2d) 140358

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- pertaining to [defendant’s] sentencing and sex offender reg istration requirements.” On October 6, 2011, “Cindy W.” of the clerk’s office faxed back , “no sex offender registration order

— if you need me to send any of these certified to you please fax me back

— .” No further correspondence between the police and the clerk’s office appears in the record. ¶ 21 On July 15, 2014, the trial court dismissed the petition on the basis that defendant failed to provide the required notice to the State. See 735 ILCS 5/2

- 1401(b) (West 2014) . That judgment is now on appeal. See Peop le v. Armstrong , No. 2

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- 0805

. 3 ¶ 22 Having summarized the 1997 proceedings, we must agree with defendant that his 1997 conviction of unlawful restraint did not make him subject to registration as a sex offender. Defendant’s conviction was the product of a negotiated plea agreement. In crafting their agreement, defendant and the State had the right to negotiate the factual basis that would support it

. See People v. Hubbard , 2012 IL App (2d) 120060, ¶ 17

. In turn, the factual basis would establish the natu re of the offense for the purposes of defining the range of available consequences. See id. ¶¶ 18

- 21 (applicable sentencing range is the range that applies to the offense as it is described by the factual basis). Here, the factual basis did not set out t hat the victim was under 18 years of age at the time of the offense. ( Indeed, no such fact was ever put before the court, at any point in the proceedings. ) Thus, by virtue of the plea agreement, the offense to which defendant pleaded guilty was not a sex offense, defendant was not subject to the consequence of sex

- offender registration, and the prosecution of de fendant for failing to register was legally baseless from the outset.

3 The record on appeal in this case was supplemented with the record in appeal No. 2

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- 0805.2016 IL App (2d) 140358

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- ¶ 23 Accordingly , we agree with defendant that t rial counsel rendered ineffective assistance

. First, trial counsel was aware that the charge against his client was predicated on a conviction of unlawful restraint, which was not, per se , a sex offense. Therefore, to perform reasonably, trial counsel would have reviewed the record in t he 1997 case

— and learned that , because th e victim’s age was not put before the court , the offense in fact was not a sex offense

. Second, it is reasonabl y proba ble (to say the least) that, had defendant realized that he could not be properly convicted of violating the Act, he would have forgone entering his plea and would have taken his chances (if any) at a trial. ¶ 24 Moreover, we note a further problem with counsel ’s representation and its results: the 1997 proceedings were devoid of references to the Act or to any obligations that defendant might incur thereunder. At the guilty

- plea hearing, the trial judge admonished defendant about the consequences of his plea, including the possible prison term and other obligations, but never told defendant that his con viction would require him to register as a sex offender. 4 And, as defendant points out, the judgment did not order him to register under the Act. ¶ 25 T he record in the 1997 case reveals that the prosecution of defendant for failing to register under the Act 1 4 years later was not only statutorily baseless but also premised on an implicit amendment of the judgment to add an obligation that the 1997 trial court neither

4 We do not imply that, even when a defendant actually must register, the trial court must so admonish him. Because registration is only a collateral consequence of a guilty plea, such an admonishment is not required. People v. Cowart , 2015 IL App (1 st ) 1 31073, ¶ 18. However, the lack of an admonishment is consistent with the lack of the requirement.2016 IL App (2d) 140358

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- admonished defendant about beforehand nor imposed after the plea. 5 Defendant has satisfied us that, had t rial counsel made the examination, he would have realized all of this. ¶ 26 The State’s arguments to the contrary are unpersuasive. The State notes that the record in the present case contains two references to the fact that the victim was under 18 years of age at the time of the offense

— defendant’s sex

- offender registration form and his letter to the trial judge in this case. However, although these documents do so state, they are not substitutes for the required showing in the 1997 case that defe ndant’s offense met the factual prerequisites that the Act established for requiring registration

. Defendant’s admissions long after the judgment was entered in the 1997 case cannot compensat e for the legal insufficiency of the 199 7 judgment or for the ju dgment’s complete omission of any reference to the Act, much less to the imposition of any obligations on defendant under the Act. ¶ 27 The State also notes that defendant was convicted in 2005 of failing to register; that he did register in 2010 ; and that he a cknowledged his failure to do so in 2011. None of these post

1997 facts repair the fatal deficiency in the 1997 judgment . D efendant’s subjective belief that he was required to register (if indeed he did so believe), and even the belief of various law

enforcement agencies or courts that he was so obligated, do not dispose of whether he was indeed so obligated. ¶ 28 Fo r the foregoing reasons, the judgment of the circuit court of Du Page County is reversed , and the cause is remanded for proceedings consistent with this opinion

. ¶ 29 Reversed and remanded

.

5 Defendant’s section 2

- 1401 petition filed in the 1997 case was, of course, premised on a similar theory. We need not decide the merits of that petition (e specially as the judgment dismissing it was based on a jurisdictional matter and is now on appeal separately).