## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Kayer , 2013 IL App (4th) 120028

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. BRIAN M. KAY ER, Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-12-0028

Filed May 6, 2013

Held (Note : Thi s syl lab us

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 b y the Repo rt 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

. ) Def endant’ s conviction for failing to reg ister an employ ment chang e as

a s ex o ff ender was reve rsed as void, wher e defe ndant was terminated from his job due to excessive absenc es and his job loss did not constitute

a chang e in his “plac e of employ ment” pursuant to t h e Sex Offe nder Reg istration Act.

Dec ision Under Review Appea l from the Circuit Court of L ivingston County
, No. 11-CF- 185; the Hon. J ennife r H. B auknec ht, J udg e, pre siding.

J udg ment J udgment vacated.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Martin J

. Ry an, all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Thomas J

. Br own, State’s Attorney , of Pontiac (Patrick Delfino, Robert J

. Bide rman, and Kathy Shepard, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE KNECHT deliver ed the judgment of the c ourt, with opinion.
J ustice Holder

Whit e conc urre d in the judgme nt and opinion. Presiding Justice Steigmann dissente d, with opinion.

OP INION

¶ 1 In July 2011, the State cha rge d d ef en d an t , Br i an M. Kayer, with unlawful failure to reg ister employ

ment chang e as a sex offe nder (730 I L CS 150/6 (West 2010)). In September 2011, defe ndant pleade d guilty to that offe nse. In October 2011, the trial court sentenc ed him
to three year s’ imprisonment. Def endant appea ls, arguing his conviction is void beca use the loss of his job did not constitute a “cha ng e” in his “plac e of employ ment” such that he was require d to repor

t under section 6 of t he S ex Of fender R eg istration Act (Registra tion Act) (730 I L CS 150/ 6 (West 2010)). We agree and vac ate de fenda nt’s conviction.

¶ 2 I . BA CKGROUND ¶ 3 In J uly 2011, the State charg ed defe ndant with unlawful failure to reg ister employ ment chang e as a sex offe nder (730 I L CS 1 5 0 / 6 (West 2010)). The information alleg ed, in its entirety , as follows:
“On or about July 6, 2011, the defe ndant BRIAN M. KAYER committed the offe nse of UNLAWFUL FAI LURE TO REGI STER EMPL OYMENT CHANGE AS A SEX OFF ENDER (Class 2 Fe lony), in that said defe ndant, a sex offe nder s ub j ect to the
reg istration require ments under the Sex Offe nder Reg istration Act [730 I L CS 150/1, et. seq .), knowing ly failed to repor t in person to the law enfor ceme nt ag ency with whom the defe ndant last reg istered (the City of Pontiac Police Depa rt ment), the chang e in the defe ndant’s employ

ment from employed at Interlake Meca lux
, Inc. (701 N. Interlake Drive, Pontiac, I llinois ) to no longe r employed there
, within three (3) day s afte r leaving that employ

ment on June 29, 2011 [as require d by 730 I L CS 150/3(b)] i n v i o l at i on of 730 I L CS 150/6, a C l as s 2 felony [pursuant to 730 I L CS 150/10), due to defe ndant’s previous conviction for the Class 3 felony offe nse of Vi olation of the Sex Offe nder Reg istration i n cause number 08 CF 609 in the Circuit Court of L a Salle County
,

-2-I llinois .” (B olding omitted; brac kets in orig inal.)

¶ 4 In September 2011, defe ndant enter ed an open plea of guilty to the charg e. T h e State provided the f

ollowing f

actua l basis to support the plea, without objection by defe ndant: “The State would call cer

tain witnesses from the Pontiac Police Depa rtment as well

as Interlake here in Pontiac who would testify and identify the Def endant in open court *** who as a sex offe nder subject to the reg istration require ments under the sex offe nder
reg istration act knowing ly failed to repor t in person to the law enfor ceme nt ag ency with whom he last reg istered *** the chang e in his employ ment status from being employed
at Interl ak e h er e i n Pontiac, I llinois
, to no longe r employed there within three day s of leaving that employ

ment. The employ

ment was, I think his last day of employ ment was J une 29th, 2011.”
In October 2011, the trial co u rt sentenc ed defe ndant to three year s’ imprisonment. In Dec ember

2011, the cour

t denied def

endant’ s motion t o rec onsider his sentenc e. ¶ 5 This appea l followed.

¶ 6 I I . ANALYSI S ¶ 7 Def

endant contends his guilty plea and his c onviction a re void be cause section 6 of the Reg istration Act (730 I L CS 150/6 (West 2010)) did not require him to repor t he was no longe r employed at Interlake

. We agree

. The prese ntence investiga tion repor t, prepa red afte r the trial court acc epted defe ndant’s guilty plea, indicated defe ndant was terminated from his employ ment at Interlake due to excessive absenc es. The rec ord does not reve al whether the
court was awa

re of the rea son defe ndant was no longe r employed when it acc epted his guilty plea. For the purpose of our analy sis, it does not matter whether defe ndant was laid off, fired, or he quit. ¶ 8 Section 6 of the Reg istration Act provides, in per tinent part, as f

ollows:
“I f any other pe rson require d to r eg ister under this Ar ticle changes his or her r esidenc e addre ss, place of employm ent , telephone number, cellular telephone number, or school, he or she shall repor

t in person, to the law enfor ceme nt ag ency with whom he or she last
reg istered, his or her new addre ss, change in employm en t , telephone number, cellular telephone number, or school *** and reg ister, in person, with the appropriate law enfor ceme nt ag ency

within the time period specif ied in Sec tion 3.” (Emphase s added.) 730 I L CS 150/ 6 (West 2010). Section 3 provides, in per tinent part, as f

ollows: “Any sex offe nder ** * s h al l
, wi thin 3 day s of beg inning school, or establishing a residenc e, place of employm ent , or temporar y domicile in any county , reg ister in person ***.” (Empha ses adde d.) 730 I L CS 150/ 3(b) ( West 2010). ¶ 9 E v en t h o u g h defe ndant pleade d guilty to violating section 6 of the Reg istration Act
, a trial court is without jurisdiction to enter a conviction ag ainst a defe ndant based upon actions that do not constitute a criminal offe nse. People v. McCarty
, 94 I ll. 2d 28, 38, 4 45 N.E.2d 298, 304 (1983) (“The re can be no doubt that jurisdiction is lacking wher e the circ umstances alleg ed do not constitute the offe nse charg ed as it is define d in the statute and nothing short

-3-of alleg ing entirely differ ent fa ct s could cure the defe ct.”)

. “The guilty plea must confess

some punishable offe nse to form the basis of a sentenc e.” (Emphasis in origina l.) Id. at 39, 445 N.E.2d at 304. “ ‘The eff ect of a plea of guilty is a rec ord admission of whateve r is well alleg ed in the indictment. I f the latter is insufficient [t he plea] confe sses nothing.’ ” (Interna l quotation marks omi tted.) Id. at 39, 445 N.E

. 2 d at 304 (quoting Klawans ki v. People
, 218 I ll. 481, 484, 75 N.E. 1028, 1029 (1905)). ¶ 10 De fe n d an t ’s co n v i ction was based on his failure to repor t he no longe r worke d at Interlake

. The plain languag e of secti o n 6 require s a sex offe nder to repor t to law enfor ceme nt his “cha

n ge i n empl oy

ment” only when he “cha ng es his *** place of employ ment.” The State did not alleg e defe ndant chang ed his place of employ m en t. The word “plac e” appea

red nowher e in the informatio n o r t h e fac tual basis. The information ref err ed only to a chang e in “def endant’ s employ

ment” and the fac tual basis ref err ed only to

a chang e in defe ndant’s “employ ment status.” This discrepa ncy betwee n the languag e of the
statute and the languag e of the inform at i o n i s more than a formal defe ct. The chang e that trig g ers a sex offender ’s duty to report unde r sec tion 6 (chang e in place of employ ment) i s

more narr ow than what the State alleg ed in the information (cha ng e in employ

ment). The information is fata lly defe ctive beca use it does not alleg e a criminal offe nse. McCarty
, 94 I ll. 2d at 38, 445 N.E.2d at 304. ¶ 11 Def

endant’ s conviction is void beca use defe ndant’s job loss, for whateve r rea son, did not constitute a chang e in his place of employ ment under section 6 of the Reg istration Act. We base our conclusion on our understanding of the meaning of the word “cha ng es” as used in the statute. Be cause this question calls for interpre tation of a statute, our revie w is de novo

. Snyder v . Heidelbe rger , 2011 I L111052, ¶ 16, 953 N.E.2d 415. ¶ 12 “When interpre ting a statute, our duty is to a scer tain and g ive ef

fec t to the intent of the leg islature.” Board of Trustees of the T eache rs’ Retireme nt System of Illinois v. W est , 395 I ll. App. 3d 1028, 1032, 916 N.E.2d 648, 652 (2009) (citing Hadley v. Illinois De partment of Corrections
, 224 I ll. 2d 365, 371, 864 N.E.2d 162, 165 (2007))

. “The most reliable indicat o r o f l egi s l ative intent is the languag e of the statute, which is to be g iven its plain, ordinary and popularly understood meaning .” In re Detention of Powell
, 217 I ll. 2d 123, 135, 839 N.E.2d 1008, 1015 (2005). “Courts should consider the statute in its entirety
, keeping in mind the subject it addre sses and the leg islature’s appar ent objective i n enac ting it.” People v . Taylor , 221 I ll. 2d 157, 162, 850 N.E.2d 134, 136 (2006). ¶ 13 The State’s interpre tation of section 6 of the Reg istration Act, as advanc ed in its brief to this court, would classify a loss of employm ent as a change in the place of employm ent

. The State ’s i n t erpr etation of the word “cha ng es” g oes beyond that word’s plain, ordinary
, and popularly understood meaning

. L oss of employ ment equate s to a chang e in employ m ent
status , but it does not equate to a chang e in the place of employm ent

. To illust rate by way of example, someone who has remove d his clothes would not say “I chang ed my clothes.” Nor would someone evicted from his home say , “I chang ed homes.” Someone who has rec ently become unemployed would not say , “I chang ed my place of employ ment.” We conclude the leg islature’s use of the word “cha ng es” in section 6 of the Reg istration Act should be g iven its plain, ordi n ary , and popularly understood meaning
, namely “to repla ce with another .” Merr iam-Webster’s Collegiate Dictionary 190 (10th ed. 2000). Section 6 of the Reg istration

-4-Act applies only when someone subject to the act changes his place o f em ploy ment from place A to place B. ¶ 14 Our conclusion is consistent with the provisi on of sectio n 6 re qu i ri ng sex offe nders to
repor t a chang e in their place of employ ment “within the time period specifie d in Section 3.” 730 I L CS 150/6 (West 2010). The time period specifie d in section 3 runs fro m t h e sex offe nder “esta

blishing a * * * p l ace of employ ment” to three day s there afte r. 730 I L CS 150/3(b) (West 2010). It would be impossibl e for a sex offe nder who loses his job to repor t within the time period specifie d in section 3 beca use that time period beg ins to run only afte r he has established a new place of employ ment. Were defe ndant to have repor ted within three day s afte r losing his job, as the State alleg es he was require d to do, his repor ting would still
not have been “within the time period specifie d in Section 3” (730 I L CS 150/6 (West 2010)), beca use that time pe riod would beg in to run only afte r he had “esta blish[ ed] a *** place of employ ment.” 730 I L CS 150/ 3(b) ( West 2010). ¶ 15 Our conclusion the statute does not require sex offe nders to repor t a loss of employ

ment g ains further support from the expli cit require ment in section 6 of the Reg istration Act that an off ender repor t when he or

she loses his or her

fix ed plac e of r esidenc e: “I f any person require d to reg ister under this Article lacks a fix ed residenc e or temporar y domicile, he or she must notify
, in person, the ag ency of jurisdiction of his or her l ast known addre ss withi n 3 days after ceasi n g to have a fixed residence ***

. ” (Emphasis added.) 730 I L CS 150/ 6 (West 2010). The leg islature’s inclusion of this requir ement demonstrates it is capa ble of distinguishing betwee n a change in fix ed residenc e (also expli citly provided for in section 6) and a loss of fix ed residence

. I f the leg islature intended to require sex offe nders to repor t a loss of employ ment, it could have in plain languag e. It did not. ¶ 16 Ou r i n t er

p re t at i o n of section 6 of the Reg istration Act is not inconsistent wi t h t h e statute’s purpose of “enha nc[ing] public safe ty by enabling la w e n f o r c ement ag encie s to keep
trac k of sex off

ender s.” Lesher v. Trent , 407 I ll. App. 3d 1170, 1174, 944 N.E.2d 479, 483 (2011) (F ifth District) (citing People v. Malchow
, 193 I ll. 2d 413, 420, 739 N.E.2d 433, 438 (2000)) . Whil e the loss of de fenda nt’s job means he will no long er be spendingtime at his former place of employ

ment, it doe s not me an there is some new location wher e he will be spending time, as would be the case if he wer e to chang e his place of employ ment from one place to another

. Our interpre tation is consistent with the purpose of the Reg istration A ct’s sister statute, the Sex Offe nder Communi ty Notification L aw (Notification L aw) (730 I L CS 152/101 to 999 (W es t 2010)). Section 120 of the Notification L aw require s the law enfor ceme nt head of the county wher ein the sex offe nder resides to inform cer tain

enumer ated bodies (school boards, child car e fac iliti es, public libraries, et cete ra ) of, among other thing s, the identity , addre ss, and pl ace of employ ment of all reg istered sex offe nders within the jurisdiction. 730 I L C S 1 5 2 / 1 20 (West 2010). When a sex offe nder repor ts a chang e in his or her place of employ ment from one location t o another
, as section 6 of t he Reg istration Act require s, section 120 of the Notification L aw serve s to aler t those near the

new place of employ

ment that a s ex o ff

en d er is now employed in the neighborhood. R equiring a sex offe nder to repor t the loss of his or her job might serve a purpose, and i t

-5-might provide law enf orce ment with useful information to help track t he sex offe nder, but the statute as written does not require such a r eport.

¶ 17 I I I . CONCLUSI ON ¶ 18 We conclude section 6 of the Reg istration Act did not require defe ndant to repor t his loss of employ

ment as a chang e in his place of employ ment. Def

endant’ s gu i l ty plea and conviction wer e based up o n actions not constituting a criminal offe nse. We vacate defe ndant’s convic tion as void.

¶ 19 J udgment vacated.

¶ 20 PRES IDI

NG JUS TI CE STEI GMANN, dissenting

. ¶ 21 The issue this case prese nts is one of statutory interpre tation. This court needs to decide whether defe ndant was require d under section 6 of the Reg istration Act to repor t in person to the City of Pontiac police depar tment that he was no longe r employed at Interlake

. As the majority notes, defe ndant was discharg ed from his employ ment for excessive absenc es. Howeve r, the majority corr ectly notes that for purposes of its interpre tation of the statute, “it does not matter whe ther de fenda nt was laid off

, fired, or he quit.” Supra ¶ 7. ¶ 22 The majority also corr ectly noted that the issue befor e this court is whether defe ndant’s being no longe r employed at Interlake constituted a “cha ng e” in his “plac e of employ ment,” such that he was re quired to repor t unde r section 6 of the Reg istration A ct. I appre ciate the majority ’s car eful analy sis, but ultimately I am not persua ded that su ch a restric tive interpre tation of section 6 is appropriat e. Be cause I believe defe ndant’s no longe r being employed at Interlake constituted a “cha ng e” in his “plac e of employ m ent” within the meaningof sec tion 6 of the Reg istration Act, I respe ctfully

dissent.

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