JUSTICE FITZGERALD delivered the judgment of the court, with opinion.
Chief Justice Thomas and Justices Garman and Karmeier concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justices Freeman and Kilbride.
The central issue in this case is whether the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2000)) violates due process because it required the defendant, Charles Johnson, to register as a sex offender after he was convicted, in the circuit court of Cook County, of aggravated kidnapping of a minor. See 720 ILCS 5/10--2 (West 2000). The State appeals the decision of the appellate court that the Act was unconstitutional as applied to the defendant. 363 Ill. App. 3d 356. For the reasons that follow, we reverse and remand.
In 1986, the General Assembly enacted the Habitual Child Sex Offender Registration Act, which required persons convicted of sex offenses against children to register with local law enforcement. Ill. Rev. Stat. 1987, ch. 38, par. 221 et seq. In 1996, the statute was renamed the Sex Offender Registration Act and expanded to include certain sex offenses against adults, as well as non-sexual offenses against children. See 730 ILCS 150/1 et seq. (West 1996). Section 2(A)(1)(a) of the Act defined "sex offender" as a person charged with and convicted of an enumerated sex offense. 730 ILCS 150/2(A)(1)(a) (West 2002). Section 2(B)(1.5) of the Act included, in its definition of "sex offense," aggravated kidnapping "when the victim is a person under 18 years of age, the defendant is not a parent of the victim, and the offense was committed on or after January 1, 1996." 730 ILCS 150/2(B)(1.5) (West 2002). A person convicted of a sex offense must register as a sex offender with local law enforcement. See 730 ILCS 150/3 (West 2002).
On October 23, 1999, the defendant and four accomplices kidnapped Elmora Kimbrough and her 20-month-old granddaughter and demanded a ransom from Kimbrough's son. Two of the accomplices were arrested when they attempted to collect the ransom, and they led the police to a van where the victims and the defendant were found. The defendant was arrested and later indicted on one count of armed robbery, one count of armed violence, one count of possession of a stolen motor vehicle, one count of aggravated battery, nine counts of aggravated kidnapping, and three counts of unlawful use of a weapon.
On December 14, 2001, the defendant entered open guilty pleas to the armed robbery of Kimbrough and the aggravated kidnapping of her granddaughter, and the State dismissed the remaining counts against him. The trial court found a factual basis for the guilty pleas, and the defendant became subject to the registration requirements of the Act as a person charged with and convicted of aggravated kidnapping of a minor by a non-parent. At the sentencing hearing, the trial court reviewed the facts of this case and noted that Kimbrough had been undressed and bound during the kidnapping in order to control her, but that there were no sexual assault allegations. On January 29, 2002, the defendant was sentenced to concurrent terms of 17 years' imprisonment for each offense. He appealed.
The appellate court determined that the defendant received negotiated plea admonishments under Supreme Court Rule 605(c), rather than open plea admonishments under Rule 605(b) (see 210 Ill. 2d R. 605(b)), and remanded for compliance with that rule. People v. Johnson, No. 1--02--2531 (2003) (unpublished order under Supreme Court Rule 23). On remand, the trial court admonished the defendant in accordance with Rule 605(b) and denied the defendant's pro se "motion to correct a void sentence" and "motion requesting reconsideration and reduction of sentence." In its ruling the court repeated that there were no sexual assault allegations: Kimbrough "was held, and at one time all her clothes were taken off ***, I guess as part of controlling her they made her take all her clothes off." The defendant appealed, raising for the first time the constitutionality of the Act.
The appellate court determined that defense counsel failed to file a certificate under Supreme Court Rule 604(d) (see 210 Ill. 2d R. 604(d)), and again remanded for compliance with that rule. 363 Ill. App. 3d at 360. The appellate court further held that the Act, as applied to the defendant, violated the due process clauses of the federal and state constitutions. 363 Ill. App. 3d at 363-64. The appellate court found, "The record indicates that defendant's offense of aggravated kidnaping was not sexually motivated." 363 Ill. App. 3d at 363. Consequently, concluded the court, there was no rational relationship between the defendant's designation as a sex offender and the state's interest in protecting the public. 363 Ill. App. 3d at 363.
Justice Wolfson concurred with the majority's decision to remand the cause for a Rule 604(d) certificate, but he dissented on the constitutional issue. 363 Ill. App. 3d at 364 (Wolfson, J., specially concurring in part and dissenting in part). According to Justice Wolfson,
"It is the nature of the crime--kidnaping a child--that triggers the Registration Act provisions.
Once an offender makes the decision to commit the aggravated kidnaping of a child, there is a very real possibility the child will become a victim of sexual abuse. Our Reports are filled with such cases.
In this case the crime was interrupted while it was in progress. The child was being held in a stolen van when the police arrived. The legislature has the authority to protect children from such an offender. Requiring him to register his name and address with law enforcement officials does not offend due process of law." 363 Ill. App. 3d at 364-65 (Wolfson, J., specially concurring in part and dissenting in part).
After we allowed the State's petition for leave to appeal, Public Act 94--945 was adopted. Effective June 27, 2006, Public Act 94--945 amended section 2(B)(1.5) and redefined the term "sex offense" under the Act. Section 2(B)(1.5) of the Act now includes, in its definition of sex offense, aggravated kidnapping "when the victim is a person under 18 years of age, the defendant is not a parent of the victim, the offense was sexually motivated as defined in Section 10 of the Sex Offender Management Board Act, and the offense was committed on or after January 1, 1996." (Emphasis added.) Pub. Act 94--945, §1025, eff. June 27, 2006 (amending 730 ILCS 150/2(B)(1.5)).
Public Act 94--945 also contained the Child Murderer and Violent Offender Against Youth Registration Act. See Pub. Act 94--945, eff. June 27, 2006 (adding 730 ILCS 154/1 et seq.). A person convicted of, inter alia, aggravated kidnapping of a minor by a non-parent must now register under the Sex Offender Registration Act when the offense is sexually motivated, and under the Violent Offender Against Youth Registration Act when it is not. Section 11 of this Act provides for transfers from one registry to the other:
"(a) The registration information for a person registered under the Sex Offender Registration Act who was convicted or adjudicated for an offense listed in subsection (b) of Section 5 of this Act may only be transferred to the Child Murderer and Violent Offender Against Youth Registry if all the following conditions are met:
(1) The offender's sole offense requiring registration was a conviction or adjudication for an offense or offenses listed in subsection (b) of Section 5 of this Act.
(2) The State's Attorney's Office in the county in which the offender was convicted has verified, on a form prescribed by the Illinois State Police, that the person's crime that required or requires registration was not sexually motivated as defined in Section 10 of the Sex Offender Management Board Act.
(3) The completed form has been received by the registering law enforcement agency and the Illinois State Police's Sex Offender Registration Unit." Pub. Act 94--945, eff. June 27, 2006 (adding 730 ILCS 154/11(a)). Though we have held that the Sex Offender Registration Act applies retroactively (see People v. Malchow, 193 Ill. 2d 413, 418 (2000)), we have not held that the amendments to that statute in Public Act 94--945 do so. Generally, a statutory amendment cannot be given retroactive effect absent a clear expression of legislative intent. See In re Detention of Lieberman, 201 Ill. 2d 300, 321 n.3 (2002); see also People v. Atkins, 217 Ill. 2d 66, 71 (2005) (intimating that a statutory amendment may be applied retroactively where the legislature so intends). Here, amended section 2(B)(1.5), like original section 2(B)(1.5), applies to persons convicted of aggravated kidnapping of a minor after January 1, 1996. This obviously includes the defendant. Under the original statute, aggravated kidnapping of a minor was defined as a sex offense, regardless of its motivation. As Justice Wolfson noted in his dissent, the nature of the crime itself triggered the registration requirement. See 363 Ill. App. 3d at 364 (Wolfson, J., specially concurring in part and dissenting in part). Under the amended statute, this offense is defined as a sex offense only if it is sexually motivated. Now, the nature of the crime coupled with its impetus triggers the registration requirement.
Generally, "where a challenged statute is amended while the cause is pending, the question of the statute's validity becomes moot, thus rendering unnecessary its review by the court." People v. B.D.A., 102 Ill. 2d 229, 233 (1984). Concluding that amended section 2(B)(1.5) applies retroactively, however, does not take the defendant off the sex offender registry. Indeed, the parties agree on retroactivity, but they vigorously contest the constitutionality of original section 2(B)(1.5). Though Representative Fritchey, one of the House sponsors of Public Act 94--945, asserted that the statute "simply shifts" a person from the sex offender registry to the violent offender against youth registry if the offense was not sexually motivated (see 94th Ill. Gen. Assem., House Proceedings, February 22, 2006, at 13 (statements of Representative Fritchey)), the Act is not self-executing. It does not provide for a fresh judicial determination of whether an offense that placed a person on the sex offender registry before June 27, 2006, was sexually motivated.*fn1 The defendant's only recourse is the transfer provision of section 11 of the Violent Offender Against Youth Registration Act. The mechanics of this provision are, at best, ill-defined.
Unlike the Sexually Dangerous Persons Act (see 725 ILCS 205/9 (West 2004)) and the Sexually Violent Persons Commitment Act (see 725 ILCS 207/65 (West 2004)), which expressly allow committed persons to file discharge petitions, section 11 does not provide that a registered person may file a transfer petition. Additionally, section 11 does not instruct the trial court to decide whether the offense was sexually motivated. The statute leaves that decision solely to the discretion of the State's Attorney: a transfer is conditioned, in part, on whether the State's Attorney in the county where the person was convicted has verified that there are no facts underlying the offense indicating sexual conduct or an intent to engage in such conduct. Pub. Act 94--945, eff. June 27, 2006 (adding 730 ILCS 154/11), citing 20 ILCS 4026/10 (West 2004). Section 11 further does not contemplate judicial review of a decision by the State's Attorney that the offense was sexually motivated, and consequently that the person is ineligible for a transfer. The case before us exemplifies the problem with the statutory scheme.
When the defendant was convicted, section 2(B)(1.5)'s definition of sex offense did not hinge on motivation, and the trial court understandably made no express finding in that regard. The trial court twice referred to the fact that Kimbrough had been undressed before she was bound. At the defendant's first sentencing hearing, the court observed that there were no sexual assault allegations accompanying this conduct. Later, on remand at a hearing for Rule 605(c) admonishments, the trial court guessed that this conduct was a means to control Kimbrough. The gratuitous and equivocal nature of the trial court's comments on this issue undermine the appellate court's confident announcement that the record indicates the defendant's offense was not sexually motivated. See 363 Ill. App. 3d at 363. More importantly, the trial court's comments concerned the defendant's conduct toward Kimbrough, not his conduct toward her granddaughter. It remains inappropriate for a reviewing court to make fact determinations, and it is particularly inappropriate on this record. We vacate the appellate court's conclusion on this issue.
Before us, the State still insists that the defendant's conduct was sexually motivated. In its opening brief the State asserts that the statutory definition of sexually motivated "is a very low threshold." The State continues:
"The removal of all of a victim's clothing is not inherently part of the detention or captivity of kidnaping victims, nor is it related to effectuating a ransom. It is, however, circumstantial evidence ...