People v. Brock

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Appellate Court Date: 2016.02.18 08:59:13

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People v. Brock, 2015 IL App (1st) 133404

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption PAUL BROCK, Defendant-Appellant.

District & No. First District, First Division

Docket No. 1-13-3404

Filed November 23, 2015

Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-14169; the

Review Hon. Clayton J. Crane, Judge, presiding.

Judgment Reversed in part; affirmed in part; vacated in part; remanded for

resentencing.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Deepa Punjabi, all of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Tasha-Marie Kelly, and Brian A. Levitsky, Assistant State’s

Attorneys, of counsel), for the People.

Panel JUSTICE CUNNNINGHAM delivered the judgment of the court,

with opinion.

Presiding Justice Liu and Justice Harris concurred in the judgment and

opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, defendant Paul Brock was

found guilty of failure to report in person within 90 days of his last date of registry and

failure to report his change of address within 3 days as a registered sex offender in violation

of the Sex Offender Registration Act (Act) (730 ILCS 150/6 (West 2012)), and sentenced as

a mandatory Class X offender to six years of imprisonment. On appeal, the defendant

contends that: (1) the evidence was insufficient to establish that he violated either provision

of the Act; and (2) the trial court committed reversible error when it used his prior criminal

conviction for aggravated criminal sexual assault as both an enhancement in sentencing him

as a Class X offender and as an element of the charged offense, resulting in an improper

double enhancement. For the following reasons, we affirm in part, reverse in part, and vacate

in part the judgment of the circuit court of Cook County.

¶2 BACKGROUND

¶3 The defendant was charged by indictment for failure to comply with the Act “on or about

April 19, 2012 and continuing on through July 3, 2012” in that “having been previously

convicted of aggravated criminal sexual assault under case number 94CR1711801,” the

defendant (1) “knowingly failed to report, in person, to the law enforcement agency with

whom he last registered *** [90] days from the date of such registration and every [90] days

thereafter *** in violation of chapter 730 Act 150 section 6 of the Illinois Compiled Statutes

1992,” and (2) “changed his address and knowingly failed to report, in writing, to the law

enforcement agency with whom he last registered *** within three days of such change of

address, *** in violation of chapter 730 Act 150 section 6 of the Illinois Compiled Statutes

1992.” The indictment further charged that “the State shall seek to sentence [defendant] as a

Class 2 offender because [he] was previously convicted of failure to register as a sex offender

under case number 04CR2354101.”

¶4 The State’s evidence at trial showed that the defendant initially registered with the

Chicago police department as a sex offender on January 19, 2012. Officer Cipun testified that

during the defendant’s initial registration, defendant provided a state identification card that

listed his address as 952 West 58th Street, Apartment 2, Chicago, Illinois. The defendant was

informed, inter alia, that he must renew his registration every 90 days, that he must notify the

police department in person of any change in address within three days of changing such

address, and that his registration renewal date was April 18, 2012. The State introduced into

evidence the defendant’s initial registration form, which is dated January 19, 2012 and

contains his signature at the bottom of each page and his initials next to its various

provisions. A copy of the state identification card he provided to officers during the January

19, 2012 registration was also admitted into evidence.

¶5 On cross-examination, Officer Cipun testified that in accordance with the “logs” kept by

the Chicago police department’s registration unit, the defendant appeared in person to renew

his registration on April 18, 2012. However, because the defendant “did not have proof of

address that is required by state law for registration,” he was unable to complete the

registration process.

¶6 Officer Bell testified that on June 12, 2012, he was performing sex offender registration

checks and went to 952 West 58th Street in search of the defendant. Officer Bell stated that

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he did not see the defendant’s name on any of the mailboxes and knocked on every single

door, but was unable to locate him.

¶7 Officer West testified that on July 3, 2012, he went to 11550 South Perry Avenue in

Chicago to perform follow-up investigations on investigative alerts within his district. Officer

West located the defendant at this address and asked for identification. The defendant

produced a state identification card bearing the name and picture of the defendant and listed

his address as 11550 South Perry Avenue. Officer West then placed the defendant under

arrest.

¶8 On July 4, 2012, Detective Dubose conducted a custodial interview with defendant.

During the interview, the defendant confirmed that he moved to his current address, 11550

South Perry Avenue, in April 2012. On cross-examination, Detective Dubose acknowledged

that the defendant told him during the interview that he was unable to register on April 20,

2012, because he could not pay the $100 registration fee. The State then presented a certified

copy of the defendant’s December 12, 1996 conviction for aggravated criminal sexual assault

under case number 94 CR 1711801. The State then rested.

¶9 The defendant testified on his own behalf that he reported to the registration office on

April 18, 2012, but was turned away because the identification he provided did not list his

current address. He also testified that on April 20, 2012, he returned to the police station and

attempted to register with his new state identification card, but was unable to do so because

he could not pay the registration fee. The defendant stated that the police department gave

him a two-month grace period to pay the fee, but he was unable to obtain the money and was

subsequently arrested on June 30, 2012, released, and then arrested again on July 1, 2012 for

failure to pay the registration fee. The defendant did not appear at the police station to

register after April 20, 2012.

¶ 10 The trial court found the defendant guilty on both counts. During sentencing, the State

argued that the defendant was subject to Class X sentencing due to his two prior felonies: a

1994 conviction for aggravated criminal sexual assault (which was introduced by the State

into evidence during trial and cited in the indictment), and a 1984 conviction for indecent

liberties with a child. The trial court ultimately sentenced the defendant to the minimum six

years of imprisonment under the Class X sentencing scheme. The defendant’s timely appeal

follows.

¶ 11 ANALYSIS

¶ 12 The defendant first contends that the evidence was insufficient to prove his guilt beyond a

reasonable doubt because he fulfilled his duty to report under section 6 of the Act when he

appeared at the police station on April 18, 2012 and again two days later on April 20, 2012.

In response, the State argues the evidence was sufficient because the section 6 reporting

requirement also requires registration, and the evidence established that the defendant was

unable to register.

¶ 13 Although the defendant phrases his contention as an evidentiary argument, the parties’

arguments raise an issue of statutory construction. Consequently, in order to determine

whether the evidence was sufficient to establish the defendant’s guilt, we must first

determine what reporting or registration duties are required by section 6 of the Act.

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¶ 14 The primary rule of statutory construction is to ascertain and give effect to the intent of

the legislature. People v. Hanna, 207 Ill. 2d 486, 497 (2003); Hartney Fuel Oil Co. v. Hamer,

2013 IL 115130, ¶ 25. The best evidence of legislative intent is the language of the statute

which will be given its plain and ordinary meaning. People v. Tucker, 167 Ill. 2d 431, 435

(1995); People v. Bole, 155 Ill. 2d 188, 197 (1993). Statutes are read as a whole, so that

interpretation of a statute’s language does not render any part meaningless or superfluous,

and its words and phrases are construed in light of other relevant provisions of the statute.

People v. Ellis, 199 Ill. 2d 28, 39 (2002); In re Detention of Stranbridge, 2012 IL 112337,

¶ 70. Issues of statutory construction are reviewed de novo. People v. Robinson, 172 Ill. 2d

452, 457 (1996).

¶ 15 The Act imposes two separate requirements on individuals who are subject to its

provisions. See 730 ILCS 150/1 et seq. (West 2012). The first, outlined in section 3 of the

Act, imposes a general duty to register on all sex offenders. 730 ILCS 150/3 (West 2012).

The second, outlined in section 6 of the Act, is the duty to report. 730 ILCS 150/6 (West

2012). The defendant argues that section 6 mandates only a reporting requirement. The State,

however, argues that the statute requires “registrants to do more than simply appear at the

registration office,” and, thus, where the “indictment states that defendant knowingly failed

to report in person, it means that he failed to complete his registration requirements.”

¶ 16 The section of the statute under which defendant was charged specifically refers to

individuals currently or previously deemed sexually dangerous (see 725 ILCS 205/1.01

(West 2012)) or sexually violent persons (see 725 ILCS 207/5(f) (West 2012)) and outlines

additional reporting and registration requirements (such as a duty to report in person every 90

days) which do not appear under the section 3 general duty to register that is imposed on all

sex offenders and sexual predators. See 730 ILCS 150/3, 6 (West 2012). The statute,

therefore, imposes a separate and additional duty on those sex offenders specifically

adjudicated “dangerous” or “violent,” and it is clear from the language of the statute that the

legislature intended to distinguish a duty to report that does not simply duplicate the

registration requirement.

¶ 17 For example, section 6 states, “[i]f any other person required to register under this Article

changes his or her residence address *** he or she shall report in person, to the law

enforcement agency with whom he or she last registered *** and register, in person, with the

appropriate law enforcement agency within the time period specified in Section 3.”

(Emphases added.) 730 ILCS 150/6 (West 2012). If the duty to report necessarily

encompassed the duty to register, the change of address provision requiring a “report in

person” would render the “register in person” clause superfluous. See In re Detention of

Stranbridge, 2012 IL 112337, ¶ 70 (“[w]e must also avoid rendering any part [of the statute]

meaningless or superfluous”). The language of the statute clearly distinguishes “report” and

“register” and when it requires one, or both, it does so by expressly stating such requirement.

¶ 18 The statute defines registration, in part, as “a statement in writing signed by the person

giving the information that is required by the Department of State Police.” 730 ILCS

150/8(a) (West 2012). Therefore, in order to complete the registration process, a signed

writing must be generated. Although report is not specifically defined in the Act, The

American Heritage College Dictionary defines “report” as “to relate or tell about; to make or

present an often official, formal, or regular account of.” The American Heritage College

Dictionary 1158 (3d ed. 1992). Therefore, although related, one can “report” without

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registering, but may not “register” without reporting, because registration requires the

creation of a signed writing.

¶ 19 Having construed the language of the statute, we turn now to the question of whether the

defendant violated its provisions. Accordingly, we will address each count of the indictment

in turn.

¶ 20 When a defendant challenges the sufficiency of the evidence to sustain his conviction, the

relevant question on review is whether, after considering the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011);

People v. Collins, 106 Ill. 2d 237, 261 (1985). A conviction will only be overturned where

the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable

doubt of defendant’s guilt. Beauchamp, 241 Ill. 2d at 8.

¶ 21 In order to sustain a conviction under section 6 of the Act, the State must generally prove

that (1) defendant was subject to the reporting requirements under the Act, and (2) defendant

knowingly failed to report in person at the requisite reporting agency. See 730 ILCS 150/6

(West 2012). This section further provides several manners in which a defendant may violate

the in-person reporting provision including, in relevant part, (1) the failure to report in person

within 90 days of the date of his last registration and/or (2) failure to report in person and

register a change of address within three days of such change. Id.

¶ 22 The defendant first argues that the evidence was insufficient to establish his guilt of

failure to report in person within 90 days where the evidence at trial established that he

appeared in person at the police station on the ninetieth day as required but was unable to

register due to lack of appropriate identification. The State’s argument at trial was identical

to that on appeal–that the defendant violated the statute because he failed to complete a

registration on the ninetieth day.

¶ 23 With regard to count I, section 6 mandates that any person deemed sexually dangerous or

violent, must “report in person *** no later than 90 days after the date of his or her last

registration and every 90 days thereafter.” (Emphasis added.) Id. The indictment alleged that

the defendant violated this provision on April 19, 2012 and continuously until July 3, 2012,

when he knowingly failed to report in person within 90 days.

¶ 24 Notably, this provision of the statute does not mention a registration requirement. As

such, the defendant may satisfy his duty simply by reporting–and the evidence clearly

established that the defendant’s actions were sufficient to satisfy the reporting requirement.

Here, the defendant appeared in person at the Chicago police department on April 18, 2012,

the ninetieth day after his initial registration, spoke with the registration officer, and provided

a formal account of his whereabouts and other information in an attempt to register. A log

was created by the Chicago police registration office memorializing the defendant’s

appearance despite the defendant being turned away by the police without “registering”

because he lacked the appropriate identification. Under these facts, we hold that no rational

trier of fact could conclude that the defendant failed to report in person within 90 days within

the meaning of the statute, and we therefore reverse the defendant’s conviction with regard to

count I.

¶ 25 The defendant next argues that the evidence was insufficient to establish his guilt as

charged under count II of the indictment for failure to report his change of address within

three days of the date of such change.

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¶ 26 The indictment charging defendant with the failure to report his change of address

alleged that the defendant “committed the offense of violation of the Sex Offender

Registration Act in that he, having been previously convicted of aggravated criminal sexual

assault under case number 94CR1711801, changed his address and knowingly failed to

report, in writing, to the law enforcement agency with whom he last registered *** within

three days of such change of address, *** in violation of chapter 730 Act 150 section 6 of the

Illinois Compiled Statutes.”

¶ 27 Notably, Public Act 94-166 (Pub. Act 94-166, § 5 (eff. Jan. 1, 2006) (amending 730

ILCS 150/6 (West 2004))) replaced the writing requirement with in-person, thus it appears

the defendant was indicted under an outdated version of the statute.1 Although we note a

potential deficiency in the charging instrument, this issue has been forfeited2 and, thus, we

turn to the relevant question of whether the defendant’s conduct violated the statute in effect

at the time of the commission of the alleged offense.

¶ 28 Section 6 states, “[i]f any other person required to register under this Article changes his

or her residence address *** he or she shall report in person, to the law enforcement agency

with whom he or she last registered *** and register, in person, with the appropriate law

enforcement agency within the time period specified in Section 3.” (Emphases added.) 730

ILCS 150/6 (West 2012). Accordingly, the defendant violated section 6 of the Act if he failed

to report and register, in person, his change of address within three days of the date he

obtained a new residence.

¶ 29 The State presented Detective Dubose’s testimony that the defendant admitted that he

moved in April 2012. In addition, evidence showed that the defendant’s last registration was

completed on January 19, 2012, and by the time of his arrest on July 3, 2012, the defendant

had not registered his new address. The State also produced evidence that on June 12, 2012,

nearly two months after the defendant’s registration timeline expired, Officer Bell reported to

the defendant’s previous address in search of him and was unable to locate the defendant on

the premises. It was not until follow-up investigations were conducted by Officer West on

July 3, 2012, that the defendant was located at his new address and subsequently arrested for

violation of the Act. Therefore, his duty to report and register his change of address was not

fulfilled, and we uphold his conviction under count II.

¶ 30 The defendant testified that after being turned away for lack of identification on April 18,

2012, he returned two days later on April 20, 2012, with identification that contained his new

address but was turned away a second time because he lacked the required registration fee.

However, the trier of fact was not obligated to believe the defendant’s statement. See People

1

Although we determined the registration requirement under this provision requires a signed

writing, a distinction can be made between “report in writing” and the current language of the statute.

Although the result is the same (a writing is generated), the former frustrates the intent of the statute

because it arguably could be satisfied by mailing a letter or document without an in-person appearance.

2

Defendant did not raise a challenge to the charging instrument either before or during trial or on

appeal and has not shown prejudice; therefore, the issue is forfeited. See People v. Long, 55 Ill. App. 3d

764, 771 (1977) (formal defect in indictment waived if timely challenge not made); People v. Sanchez,

329 Ill. App. 3d 59, 68 (2002) (issues not argued in appellate brief deemed waived); People v. Phillips,

215 Ill. 2d 554, 562 (2005) (defendant must show indictment prejudiced defendant in preparation of

defense if challenged first time on appeal).

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v. Evans, 209 Ill. 2d 194, 211 (2004). Furthermore, that statement does not help the defendant

since he did not return to attempt registration after April 20, 2012. Additionally, the

defendant cannot point to a log by the registration office or any signed writing generated as a

result of his alleged in person appearance on April 20, 2012 that would satisfy the

registration requirement under section 6. In so finding, we leave for another day the question

of whether a fee must be paid in order to register within the meaning of section 6 and, if so,

what effect the alleged inability to pay has on compliance with the statute. In this case, the

question of whether the defendant had the required fee necessary to register was not the crux

of the statutory violation.3 As such, we cannot find the evidence to be so improbable that no

rational trier of fact could have found the defendant guilty of knowingly failing to report and

register his change of address within three days of such change, in clear violation of section 6

of the Act.

¶ 31 Nonetheless, the defendant argues that the indictment did not allege that he failed to

provide acceptable proof of address, a requirement found under section 3(c)(5) of the Act

and, thus, this requirement should not be construed as an additional element under section 6

of the Act. We reject this contention. As noted, section 6 states that whenever a person who

is “required to register” under the Act changes his residence, he shall report and register in

person with the appropriate law enforcement agency within the time period specified under

section 3. See 730 ILCS 150/6 (West 2012). Registration of a change of address entails

producing “positive identification and documentation that substantiates proof of residence at

the registering address,” as set forth under section 3 (730 ILCS 150/3(c)(5) (West 2012)),

which we must read together with section 6 as requiring the defendant to show positive proof

of his new residence at 11550 South Perry Avenue. See In re Detention of Stranbridge, 2012

IL 112337, ¶ 70; Ellis, 199 Ill. 2d at 39 (statutes are read as a whole, so that interpretation of

the language does not render any part meaningless or superfluous, and the words and phrases

are construed in light of other relevant provisions of the statute).

¶ 32 The defendant contends that, even had the proof of address requirement been alleged in

the indictment, the State failed to prove that he did not meet this requirement. Pointing to

Officer Cipun’s testimony, in which she stated that the defendant could not complete his

registration on April 18, 2012 because he “did not have proof of address that is required by

state law for registration,” the defendant argues that Officer Cipun failed to provide any

details regarding what kind of proof the defendant did or did not produce to the registration

office on April 18, 2012, or what she understood the requirements to be under the Act.

Viewing the evidence in the light most favorable to the State, the court, as the trier of fact,

was in the best position to observe the witnesses’ demeanor, determine their credibility, and

weigh the evidence. It was within the province of the trier of fact to find Officer Cipun

credible, and we will not disturb that determination on appeal. Further, at trial, the defendant

admitted that he did not have his identification card bearing the new address when he

appeared at the registration office on April 18, 2012. Thus, we conclude that a reasonable

3

Under the Act, “[t]he law enforcement agency having jurisdiction 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 2012). We note that the defendant here made no further effort to explain his alleged lack of

registration fee nor additional attempt to register after being turned away on April 20, 2012.

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trier of fact could have found that he lacked the documentation needed to satisfy the proof of

address requirement under the Act.

¶ 33 The defendant next argues that even assuming that he had provided an identification card

bearing his old address when he was turned away on April 18, 2012, the State still failed to

show that he violated the Act. Specifically, he argues that because a sex offender must report

in person and register a change of address within three days of such change, the State failed

to establish when he moved and when the three-day clock began running. He points out that

the State’s evidence only showed that he informed Detective Dubose during the police

interview that he moved to his new residence in “April 2012.” From there, he argues that he

plausibly could have moved to the new address on April 17, one day before he reported in

person on April 18, and that his identification card bearing the old address could still have

been valid because the three-day window for him to register his new address had yet to

expire. Thus, he contends, the State failed to provide any satisfactory evidence that the police

had a legal basis to turn him away when he reported in person on April 18, 2012. We find

this argument to be unpersuasive, as it ignores the fact that the indictment alleged that the

defendant failed to timely register his change in address in violation of the Act “on or about

April 19, 2012 and continuing on through July 3, 2012.” Even assuming the defendant had

moved to the new address on April 17, 2012, there is no indication that the defendant ever

returned to the registration office to register his new address at any time after the three-day

window had passed and before he was arrested on July 3, 2012.

¶ 34 Likewise, we reject the defendant’s argument that, instead of turning him away on April

18, 2012, the police at the registration office should have registered him as someone who

lacked a “fixed residence” and required him to report in person on a weekly basis under

section 6 of the Act. In support, the defendant cites People v. Wlecke, 2014 IL App (1st)

112467, in which the defendant was convicted of failing to register as a sex offender based

on his failure to comply with the weekly reporting requirement while lacking a fixed

residence under section 6 of the Act. In Wlecke, the defendant timely reported to the

registration office to register as a sex offender within three days of being released from a

correctional facility, presented a temporary Illinois Department of Corrections (IDOC)

identification card listing the Veterans’ Administration (VA) Hospital as his address, but was

turned away by Officer Meaders under the erroneous belief that the temporary IDOC

identification card could not be used to register the defendant. Id. ¶ 10. Instead, Officer

Meaders wrote the defendant’s name in a log, but did not document where he was staying or

inform him that he was required to report weekly until he had satisfactory proof of residence.

Id. Six days later, the defendant was arrested for failure to register as a sex offender and was

later convicted of failing to report weekly to the police department while lacking a fixed

residence under section 6 of the Act. Id. ¶¶ 11, 15. In reversing his conviction, this court

found that a residential treatment facility like the VA Hospital can be considered a “fixed

residence” under the Act; that nothing in the Act precluded the defendant from presenting the

temporary IDOC identification card as sufficient proof of residence; and that even if the

IDOC card was not valid proof of residence, the defendant should have been registered as an

offender lacking a “fixed residence” that required weekly reporting so that he would not have

been in violation of the Act less than a week later–six days–when he was arrested. Id. ¶¶ 26,

28, 38. We find Wlecke to be distinguishable from the case at bar, where here, the issue was

not whether the defendant produced a valid form of identification card, but whether the

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information on the identification card contained the new address that the defendant was

attempting to report and register. As noted, the defendant admitted at trial that he did not

produce an identification card bearing the new address when he appeared at the registration

office on April 18, 2012. One purpose of the registration requirement is to advise the

authorities of a convicted sex offender’s whereabouts. That purpose would be frustrated if the

defendant’s argument is accepted. Thus, because the defendant admittedly had a fixed

residence 4 within the meaning of the Act but failed to produce an identification card

evidencing the new fixed residence, we reject the defendant’s red herring argument that the

registration office should have somehow registered him anyway as lacking a fixed residence

under the Act.

¶ 35 In sum, the defendant satisfied his 90-day reporting requirement by appearing in person

at the police station on April 18, 2012, and his conviction under count I is reversed.

However, his conviction is affirmed under count II with regard to his failure to report his

change of address because he failed to register his new address within three days of such

change.

¶ 36 The second issue on appeal is whether the defendant’s prior conviction for aggravated

criminal sexual assault was improperly used as both an element of the offense and as a basis

for imposing a mandatory Class X sentence, thus resulting in an improper double

enhancement.

¶ 37 An improper double enhancement occurs, absent the legislature’s clear expression of its

intention to enhance the penalty based upon an aspect of the crime, when (1) a single factor is

used as either both an element of the offense and as a basis for imposing a harsher sentence,

or (2) the same factor is used twice to elevate the severity of the offense itself. People v.

Siguenza-Brito, 235 Ill. 2d 213, 232 (2009); People v. Phelps, 211 Ill. 2d 1, 15 (2004). The

defendant claims he has suffered double enhancement of the first kind, arguing that his prior

conviction for aggravated criminal sexual assault was an element of the instant offense and

was also used as one of the two prior felonies to impose Class X sentencing on a Class 2

offense.

¶ 38 The defendant was charged with violating section 6 of the Act, in that having previously

been convicted of aggravated criminal sexual assault under case number 94 CR 1711801, he

changed his address but failed to report such change within the time period specified. 730

ILCS 150/6 (West 2012). The Act states that “[a]ny person who is convicted for a violation

of this Act for a second or subsequent time is guilty of a Class 2 felony.” 730 ILCS 150/10(a)

(West 2012). The defendant was eligible to be sentenced as a Class 2 offender because he

was previously convicted of failure to register under case number 04 CR 2354101, making

the instant conviction a subsequent violation of the Act. He was also found to be eligible for

Class X sentencing pursuant to section 5-4.5-95(b) of the Unified Code of Corrections, which

requires a defendant convicted of a Class 2 felony to be sentenced as a Class X offender if he

or she was previously convicted of two separately tried offenses of Class 2 felony or greater.

See 730 ILCS 5/5-4.5-95(b) (West 2012). The defendant’s qualifying convictions were

indecent liberties with a child and aggravated criminal sexual assault.

4

“Fixed residence” is defined as “any and all places that a sex offender resides for an aggregate

period of time of 5 or more days in a calendar year” under the Act. 730 ILCS 150/2(I) (West 2012).

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¶ 39 As stated above, the defendant argues that his conviction for aggravated criminal sexual

assault was improperly used twice: once as an element of the instant offense and again as one

of the two prior felonies for Class X sentencing. Based upon the facts of the present case, this

court’s opinion in People v. Hall, 2014 IL App (1st) 122868, controls.

¶ 40 In Hall, as in the present case, the defendant was charged with failure to report under

section 6 of the Act. Id. ¶ 2. The record revealed that the defendant had only two prior felony

convictions–one for driving under the influence of alcohol and another for aggravated

criminal sexual assault. The Hall court rejected outright the State’s argument that the

defendant’s prior conviction for aggravated criminal sexual assault was not improperly used

to enhance the charge and the sentence, where his aggravated sexual assault conviction was

used as the basis for establishing defendant was subject to the Act’s reporting requirements

(i.e., as an element of the offense) and as one of the two prior felonies required to sentence

the defendant as a Class X offender. Id. ¶ 14.

¶ 41 Likewise, the defendant in the present case had only two prior felony convictions–one for

aggravated criminal sexual assault and a second for indecent liberties with a child. The

indictment listed defendant’s prior conviction for aggravated criminal sexual assault as the

basis for establishing his duty to comply with the Act. This conviction was also necessarily

used as one of his two prior felony convictions to mandate Class X sentencing. Therefore, in

accordance with Hall, the defendant’s sentence was improper.

¶ 42 Nonetheless, the State argues that Hall was wrongly decided because his conviction for

aggravated criminal sexual assault was used as a manner of establishing that the defendant

was subject to the Act’s reporting requirements but is not an element of the offense itself, and

was therefore not improper double enhancement. However, the Hall court expressly

concluded that establishing a defendant’s duty to register under the Act is an element of the

offense of failure to report. Id. As such, the State has failed to provide a compelling basis that

requires this court to deviate from our decision in Hall. Accordingly, we vacate the sentence

and remand the cause for resentencing. See id. ¶ 13.

¶ 43 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed

with regard to the defendant’s conviction for failure to report within 90 days under count I,

affirmed with regard to the defendant’s conviction under count II for failure to report and

register his new address within three days of changing his address, and the defendant’s

sentence is vacated and the cause remanded for resentencing.

¶ 44 Reversed in part; affirmed in part; vacated in part; remanded for resentencing.

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