FIFTH DI VISI ON August 22, 2008 No. 1-07-0393 In re T.C., a Minor ) Appeal from the (The Peo ple of the State of I llinois, ) Circuit Court of ) Co ok Co un ty. Petitioner-Appellee, ) v. ) No. 03 JD 3603 ) Traven C., ) Honorab le ) Rodney

HughesBrooks, Respondent-Appellant). ) Judge Presi ding.

PRESID ING

JUSTICE

FIT ZGERAL D SMIT H deliver ed the opinion of the

court: Following a juvenile court proceeding , T.C., a minor, was adjudicated delinquent of aggravated cr

iminal sexual assault and sentenced to five y ears of probation. As a result of being adjudicated delinquent of aggr avated criminal sexual assault, T.C. was classified as a “sexual predato r” pursu ant to the

Sex Offen der Reg istration Act (SORA ) (730 I

LCS 150 /1 et seq . (West 2004)), thereby

mandating him to register as a sex offender for the rest of his natural life. On appeal, T.C. argues that the State failed to prove him delinquent beyond a re asonable doubt and that he sh ould have

been af forded t he righ t to a jury trial as a safeg uard ag ainst the burdensom e requirements of SORA. At the juvenile proceeding, the victim, P.W., testified that on May 25, 2003, when he was in sec ond g

rade , he w as at

his g reat -gr andmothe r’s h ouse . T.C. , his c ousin , was also t here . P.W. testified that he was lying on a bed in the basement when T.C. came downstairs and g ot in bed behind P.W., pulled down the back of his pants, and put his penis near P.W.’s anus. When asked by the State if he fe

lt it “touching” when T.C. put his penis to P.W.’s anus, P.W. responded, “Yes.” When asked if he knew what his anus was for , P.W. responded, “Poop.” P.W. testifiedNo. 1-070393

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that he told T.C. to stop in a loud voice, at which point T.C. told P.W. he would “beat his ass.” P.W. averred that he believed T.C. would beat him up and that he was afr aid. The incident lasted about one minute. P.W. testified further that a few day s later he told his mother about the incident when his “

behind sta

rt[ed] itching,” a

nd that he did not imme diately

tell any one bec ause he was scared. Christina Frenzel, an assistant State’s Attorney , testified that on July 24, 2003, she met with T.C. and his mother. At that time, T.C. gave a handwritten statement, which was published to the court. In his statement, T.C. indicated that he was 14 y ears old and that P.W. was his cousin. He knew P.W. was “probably ” in second grade. T.C. stated that on the date in question, he a nd P.W. were in the basement play ing, and he bit P.W.’s butt. T.C. stated that they wer e “playing
gay ” and both P.W. and T.C. pulled their pants down to their ankles. He stated that they were lying on the be d, that his penis was hard, and that his “penis touched [P.W.] on the butt near the top center area.” At the close of evidence, the trial court found T.C. g uilty of agg

ravated criminal sexual assault pursuant t

o section 12-14(b) of the Cri minal Code of 1961 (Criminal Cod

e). 720 I LCS 5/12-14(b) (West 2004). At the sentencing hearing , the trial court determined that it was in the best inter est of T.C . that he b e made a ward of the cour t. As such , he was p laced on five y ears’ probation, and required to perform 60 hours of community service. T.C. now appeals. T.C.’s first argument on appeal is that the State failed to prove him g uilty bey ond a reasonable doubt. When a court considers a challeng e to a finding of delinquency based on theNo. 1-070393

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sufficiency

of the evidence the standard of review is whether, after viewing the evidenc e in the light most favorable to the prosecution, any rational trier of fact could have found the e ssential elements of the crime bey ond a reasonable doubt. People v. Sutherland , 223 Ill. 2d 187, 242 (2006). T.C. was adjudicated delinquent pursuant to section 12-14(b)(i) of the Criminal Code, which states that an individual commits aggravated c riminal sexual assault if the accused was under 17 yea

rs of age and commits an act of sexual penetra tion with a victim who was under 9 years of age when the act was committed. 720 I LCS 5/12-14(b)(i) (West 2004). T.C. concedes that he was under 17 on the date of the incident, and that P.W. was under 9 y ears of age. He argues, however, that the State fa iled to prove that T.C. committed an act of sexual penetration beyond a re asonable doubt. Sexual penetration is defined as “any contact, however slight, between the sex org an or anus of on

e person by a n object, the sex org an, mouth, or anus of another person.” 720 I LCS 5/12-12(f) (West 2004). See also People v. Gardner , 172 Ill. App. 3d 763, 766 (1988) (finding that defendant’s attempt to penetrate victim’s vagina , although unsuccessful, was an act of penetration for purposes of an agg ravated sexual criminal assault conviction, as sexual penetration is defined as “any contact, however slight, between the sex org an of one person and the sex organ of another person”); see also People v. Velasco , 216 Ill. App. 3d 578, 589 (1991) (finding that because “criminal sexual assault does not require physical penetr

ation,” the fact that defendant touched the victim’s genitals with his mouth was sufficient to satisfy the element of penetration). The evidence presente d at trial was that P.W. testified that T.C. put his penis byNo. 1-070393

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P.W.’s anus, and when asked if he felt it “touching” when r espondent put his penis to P.W.’s anus, P.W. responded, “Yes.” Additionally , respondent, in his handwritten statement, stated that his penis was hard and that his penis “touched [P.W.] on the butt near the top center area.” When aske d what his a

nus was us ed for, P. W. respond ed, “Poop .” Viewe d in the lig ht most favorable to the prosecution, we find that any rational trier of fact could have found, base d on this evidence, that respondent’s penis touched P.W.’s anus, thus satisfy ing the element of penetration bey ond a reasonable doubt. T.C.’s next argument on appeal is that section 5-101(3) of the Juvenile Court Act of 1987 (Juvenile C ourt Act) , which de nies minor s the rig

ht to a jury

trial exce pt in cer tain circ umstance s, is an unco nstitutiona

l violation

of due pr ocess asapplied t

o him. 705 I

LCS 405 /5-101(3 ) (West 2004). Specifically, T.C. c ontends that the consequences of being found de linquent of
aggr avated c riminal se xual assault are so burdensom e that the y de prive him o f a liber

ty in terest and that as such, the right to a jury trial should be required as a procedural saf eguard to prevent such deprivation of a liberty interest. We disagree. Our statutes are presumed to be constitutional and the burden of esta blishing a statute’s invalidity falls on the party challenging it. People v. Stanley , 369 Ill. App. 3d 441, 448 (2006). The constitutionality of a statute is review ed de novo

. Stanley , 369 Ill. App.3d at 448. Procedural due process “requires tha t a person in danger of serious loss of life, liberty or property be

given notice of the case ag ainst him and opportunity to meet it.” Stanley , 369 I ll. App. 3d at 448. “Challenges based on procedur al due process focus on the procedures e mployed by a statute and whe

ther the statute provides an opportunity to be heard at a meaningful time andNo. 1-070393

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in a meaningful manner.” Stanley , 369 Ill. App. 3d at 448. “The first step in a proc edural due process challenge is to determine whethe r an individual has been deprived of life or a protec ted liberty or proper

ty interest.” Stanley , 369 Ill. App. 3d at 448. “The second step is to deter mine what process is ‘due’ before such a de privation may occur .” Stanley , 369 Ill. App. 3d at 448. We there fore ad

dress the first ste p in T.C.’s due proc ess challenge, which is w hether T .C. has been deprived of a protected liberty interest by the requirements imposed pursuant to the Sex Offender Registration Act (SORA). B ecause T.C. was adjudicated delinquent of ag gravated criminal sexual assault, he is now classified as a “sexual predator” pursuant to SORA. See 730 IL CS 150/2(E)(1) (West 2004) (a “sexual predator” is any person convicted or adjudicated delinquent of aggravate d criminal sexual assault after July 1, 1999). SORA further pr ovides that all sexual p

redator s must register as s ex offend ers for natural life. See 730 I LCS 150 /7 (West 2004). Registration is defined as signing a w ritten statement annually, in per son, attesting that such person is a sex offender. Such written statement must be accompanied by a picture and may be accompanied by

fingerprints. If

a sex offender changes his addre ss, school, or place of employment, he has a duty to report such changes. See 730 I LCS 150/6 through 8 (West 2004). Accordingly , because T.C. was adjudicated delinquent of ag gravated criminal sexual assault and is therefore a “sexual predator” under SORA, he must register annually as a sex offender for the rest of h is natura l life and report a ny a ddress, s chool, or

place of employ ment cha nges. T .C.
argue s that thes e requir

ements a re so bur densome t

hat they deprive him of a pr

otected liberty interest. We disagree. A liberty interest mea

ns “not only the rig

ht of a citizen to be free from the mere phy sicalNo. 1-070393

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restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to b e free

in the enj oym

ent of al l his facu lties; to be

free to use them in

all lawf ul way s; to live and work where he will; to earn his livelihood by any lawful c alling; to pursue any livelihood or avocation; and for that purpose to enter into all contracts whic h may be prope

r, necessary , and essential to his carry

ing out to a successful conclusion the purposes above mentioned.” Allgey er v. Louisiana , 165 U.S. 578, 589, 41 L. Ed. 832, 835, 17 S. Ct. 427, 431 (1897). We do not believe that defendant has met his burden of showing tha t the registration requirements imposed under SOR

A depriv e him of a

protect ed liber ty in terest. T .C. has fa

iled to sho w, bey

ond merely stating that being required to reg ister as a sex offender for the rest of his natural life pla ces substantial limitations on his liberty by periodically having

to report his address, school, and place of employ

ment to authorities (see 730 IL CS 150/6 (West 2004)), how such registration requirements deprived him of his right to be free f rom physical restra

ints, to be free in the enjoyment of his fac

ulties, and to live and work where he will. See People v. Logan , 302 I ll. App. 3d 31 9, 332 (19 98) (whe re defe ndant fa iled to ide ntify how the r

egistr ation re quireme

nts impaired his ability to travel, defe ndant failed to show that the registration law deprived him of a protected liberty

or property inter

est). Moreover, several I

llinois cases have affirmatively found that the registration requirements of SORA do not affect a protected liber ty or property

interest. Cf

. People v. Stork , 305 Ill. App. 3d 714 (1999) (finding r equirements under SORA did not implicate any protected liberty interest s); Stanley , 369 I

ll. App. 3d

at 449-50

(finding lifetime r egistr ation did n ot affe ct a property intere st), citing Connecticut Department of Public Safety v. Doe , 538 U.S. 1, 155 L. Ed.No. 1-070393

7

2d 98, 123 S. Ct. 1160 (2 003); In re J.W. , 204 Ill. 2d 50, 67 (2003) (finding that the r egistration require ments of SO RA do not af fect a f undament al righ t). Ther efore, because

T.C. has f

ailed to show how the requirements of SORA deprive him of a protected liber ty interest, T.C.’s arg

ument that he was entitled to the right to a jury trial as a procedural safeg uard against such deprivation must fail. However, even if we were to find that T.C. identified a valid deprivation of a protected liberty interest, we w ould nevertheless find that he received all the proc ess he was due and thus

was no t enti tled t o the r ight t o a jur y trial. It i s well -sett led la w that “in a j uveni le pro ceedin g, due process does not require a jury .” In re Matthew M ., 335 Ill. App. 3d 276, 288 (2002); see McKeive r v. Penns ylv ania , 403 U.S. 5 28, 29 L . Ed. 2d 647 , 91 S. Ct. 197 6 (1971); see also People v. Beltran , 327 Ill. App. 3d 685 (2002). This is because a juve nile proceeding is not ‘a “criminal prosecution,” within the meaning and rea ch of the Sixth Amendment.’ People v. Taylor , 221 Ill . 2d 15 7, 168 (2006 ), quo ting McKeiver , 403 U.S. a t 541, 29 L .Ed. 2d at

658, 91 S. Ct at 1984. However, juvenile offenders have a right to a jury

trial in a limited number of situations under the Juvenile Court Act (see In re G.O. , 191 I ll.2d 37, 42

(2000) (the Act g

rants a jury trial to habitual and violent juvenile off enders, but it does not grant such a right to juveniles charg ed with fi

rst deg ree mur der)). T.C. arg

ues that b ecause

his punishm

ent sche me is comparable to that of a habitual or violent juvenile offender ’s punishment scheme, the right to a jury trial should be extended to him. While it is tr

ue that the Juvenile

Court Act

extends the

right to a jury trial to ju venile offenders in three situations, we are unpersua ded by T.C.’s attempt to compare his case to suchNo. 1-070393

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exceptions. Juvenile offenders are afforded the rig ht to a jury trial when: (1) the juvenile court designates the case as an extended jurisdiction juvenile (EJJ) prosecution, which means if the
procee ding re sults in a g

uilty verdict , the tria

l court mus t impose a j uvenile s entence and an a dult sentence, stay

ing the adult sentence on the condition that the minor not violate the provisions of the juvenile sentence (705 I LCS 405/5-810(3),(4)(ii) (West 2004)), (2) the juve nile is a habitual juvenile offender convicted of offense s that, had he been tried as an adult, would have been felonie s, there

by mandating

him to the de

partmen t of corr ections w ithout poss ibility of parol e until his twe

nty -first birthday (705 I

LCS 405/5-815(d),(f) (West 2004)), and (3) a juvenile who commits an

offense that, had he been tried as a n adult, w ould have

been a Cl ass 2 fel ony , while using the threat or force of phy sical violence, thereby mandating him to the department of

corrections without possibility o f parole until his twe

nty -first birthday (705 I

LCS 405/5- 820(d),(f) (West 2004)). T.C. argues that a juve nile sex offender, like himself, who faces the possibility of being adjudicate d delinquent for aggrava ted criminal sexual assault, and thus labeled as a sexual predator and required to re gister under SORA for the rest of his natural life, should be entitled to a jury trial just as EJJ, habitual and violent juvenile offenders are so entitled. We disagree. In each of the e

xceptions listed in the Juvenile Court Act, the juvenile offender faces severe punishment if adjudicated delinquent, i.e . mandatory inca rceration or the possibility of a n adult sen tence. T he policy reasonsbehind af

fording habitual and viole nt juvenile

offende rs a right to a jury

trial is that if they are

faced with an adult sentence, they should be afforded the same due process that an adult would have if fac ed with such sentence, namely the right to a juryNo. 1-070393

9

trial. M. Spring, Extended Jurisdiction Juvenile Prosecution: A New Approach to the Problem of Juvenile De

linquenc y in

Illin ois , 31 J. Marshall L. Rev. 1351, 1361 (1998). I n the case at bar, T.C. maintains that as a result of his adjudication of delinquency , he must register as a sex offender for life, which is an adult punishment, and theref ore he should be afforded the same due process an adult would get if faced with the requirements of registering unde r SORA. However, we note th at T.C. wa s adjudic ated del inquent of

aggr avated c riminal se xual assault, which w ould be a Class X felony

if he were tried as an adult. A Class X felony is punishable by not less than 6 years a nd not more than 30 yea

rs imprisonment. See 730 IL CS 5/5-8-1(a)(3) (West 2004). Howeve r, beca use of his minor stat

us, T.C. on

ly f aced, a nd was onl

y se ntenced to, 5 years’ probatio n and 60 hours of co mmunity service . As such, because he was be

ing sent enced a s a juvenile, and not an adult, he was afforded the proc ess he was due as a juvenile. See McKeiver , 403 U.S. a

t 541, 29 L . Ed. 2d at

658, 91 S. Ct a

t 1984 (due

process does not r

equire a jury trial in a juvenile proceeding). The re gistration requirements of SORA were theref ore a collateral consequence to his adjudication, and not part of his punishment for his offense. See In re J.W. , 204 Ill. 2d 50, 73 (2003) (finding that the r egistration requirements under SORA “are not punitive” and finding no merit to juvenile offender’s claim that lifetime re gistration requirement

was ana logous to the imposit

ion of the death pe nalty as cruel and unusu al punishm ent); see also In re Ay res , 239 Mich. App. 8, 608 N. W. 2d 132 (1999) (registration act as applied to juveniles is not a punishment); see also People ex rel. Symonds v. Gualano , 124 Ill. App. 2d 208, 215 (1970) (a collateral consequence is based on action taken by an agency

that the trial court does not control).No. 1-070393

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Moreover, while it is true that the purpose of the Juvenile Court Act is the rehabilitation of the minor (705 IL

CS 405/5-101(1)(c) (West 2004)), the purpose and policy section of the Juvenile Court Act has been recently amended to promote a juvenile justice sy stem capable of de al in g w it h t he pr ob le m o f j uv en il e d el in qu en cy, a s yst em th at wi ll pr ot ec t t he co mm un it y, impose ac countabi lity

for viola tions of la

w, and eq uip juveni le offe

nders wit h compete

ncies to live responsibly and produc tively (705 I LCS 405/5-101 (West 2004)). I mportant purposes of the Juvenile Cou

rt Act ar e now to “

protect citizens f rom juven

ile crime ,” and to “

hold each juvenile offender directly

accountable for his or her acts.” 705 I LCS 405/5-101(a),(b) (West 2004). Our supreme court has recognized that these a mendments “represent a *** shift from the singular goal of rehabilitation to include the overriding c oncerns of protecting the public and of holding juveniles accountable for violations of the law.” J.W. , 204 I ll. 2d at 69 . Given su ch conc erns, coupled with the “serious problems presented by juvenile sex offenders,” our supreme court has found that requiring a juvenile sex offender to reg ister as a sex offender for life is not at odds with the purpose and policy of the Juvenile Court Act. J.W. , 204 Ill. 2d at 70. As such, our
supreme court ha s affirmatively

found tha

t SORA is app

ropriate ly a pplicabl e to juven

iles as we ll as adults because the policy interests behind SORA are to protect the public, which is not at odds with the recently a

mended policy conc erns of the Juvenile Court Act. The requirements imposed under SORA are not a part of T.C.’s sentence, a s they are a collateral consequence and do not constitute a punishment, and we are therefore unpe rsuaded by T.C.’s a

ttempt to compare such requirements to the sentences that habitual and violent juvenile offende rs face in arguing tha

t he should have been afforded the rig ht to a jury trial.No. 1-070393

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Becau se T.C. wa s not depr ived of a liberty interest by t he requi rements o f SORA, an d in
any eve nt he was afforded all the process he wa s due as a juvenile offender, we af firm the judgment of the circuit court of Cook County

. Judgment affirmed. GALL AGHER and O'MARA FROSSARD, JJ., concur.No. 1-070393

12 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT (Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form In re T.C., a Minor

(The Peo ple of the State of I llinois, Petitioner-Appellee,

v. Traven C., Respondent-Appellant).

_____________________________________________________________________________________________ Nos. 1-07-0393 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed August 22, 2008 (Give month, day and year)

__________________________________________________________________________________________

PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT:
JUSTICES GALLAGHER and O'MARA FROSSARD, JJ., concur. Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. RODNEY HUGHES BROOKS Judge presiding.

_____________________________________________________________________________________________

_____________________________ Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word FOR APPELLANTS NONE if not represented. John Doe, of Chicago
APPELLANT: OFFICE OF THE STATE APPELLATE DEFENDER, Chicago, IL Michael J. Pelletier; Brian A McNeil.

_________________________________ __
For APPELLEES, APPELLEE: STATE’S ATTORNEY, Chicago, IL James E. Fitzegerald; Mary Boland; Samuel Shim; Colleen Keough.

____________________________________________________________________________________________