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The People of the State of Illinois v. Hernando Cardona

March 21, 2013

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
HERNANDO CARDONA, APPELLANT.



The opinion of the court was delivered by: Justice Thomas

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Hernando Cardona, appealed from an order of the circuit court of Lake County certifying him as a sex offender under the Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2008)). On appeal, defendant argued, inter alia, that the sex offender certification should be vacated because it resulted from a violation of his procedural due process rights. The appellate court affirmed. 2012 IL App (2d) 100542. Defendant again appealed, and this court allowed his petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)).

¶ 2 BACKGROUND

¶ 3 Defendant was charged by indictment with one count of indecent solicitation of a child (720 ILCS 5/11-6(a) (West 2008)) and one count of unlawful restraint (720 ILCS 5/10-3(a) (West 2008)). Shortly thereafter, the trial court ordered an evaluation of defendant's fitness to stand trial. The clinical psychologist who evaluated defendant reported to the court that, among other things, defendant showed signs of "an acute thought disorder"; was "not oriented to place, person, and situation"; appeared to be in "an acute schizophrenic state"; and was incapable of understanding the nature and purpose of the legal proceedings or assisting in his defense. Based on these observations, the psychologist recommended that defendant be found unfit to stand trial. The trial court agreed, found defendant unfit, and ordered him transferred to the Elgin Mental Health Center for further evaluation and treatment.

¶ 4 After more than a year at the mental health center, defendant still had not been restored to fitness. Consequently, defense counsel moved for a discharge hearing. See 725 ILCS 5/104-25 (West 2008). In response, and pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)), the State filed a notice of intent to call certain witnesses who would testify as to statements that A.K., the child victim, had made to them. The trial court held a section 115-10 hearing and concluded that the proffered statements were sufficiently reliable to be admitted as substantive evidence at trial or, in the absence of a trial, the discharge hearing.

¶ 5 The discharge hearing commenced nearly two years after the events leading to the charged offenses took place. At the discharge hearing, the now 13-year-old victim, A.K., testified that, on the afternoon of May 18, 2007, she was walking home from school when she heard her friend, D.H., calling her name. A.K. stopped walking and waited for D.H. to catch up. When D.H. caught up to A.K., she told A.K. that a man had been chasing her. The two friends then walked together for a time but separated again when D.H turned a corner to meet her sister. Shortly after that, a man grabbed A.K. by the wrist and said to her, in a Spanish accent, that "whether [she] liked it or not, [she] was going to go with him." A.K. then tried to pull her wrist free from the man's grasp and when she could not break free, she kicked the man in the shin. At that point, the man let her go, and A.K. immediately ran away down the street toward her home. When she looked back, the man was no longer pursuing her but was now heading in the opposite direction away from her. Although A.K. did not get a good look at the man's face, she did notice that he was wearing black shoes that were "kind of torn up." A.K. recognized the shoes as those that were worn by a man who walked around "every day" by her school, a man she identified in court as defendant. A.K. could not recall one way or the other whether the man who grabbed her said anything to her about wanting to have sex with her.

¶ 6 D.H. testified that, on the afternoon in question, she was walking home from school when an older man whom she had seen before began approaching her. The man was wearing jeans and black shoes that "looked torn up like with holes in them." D.H. ran from the man and caught up with her friend, A.K. D.H. told A.K. about the man, and the two friends walked together to the corner, at which point D.H. turned while A.K. continued straight. D.H identified defendant in court as the man who approached her that day.

¶ 7 A.K.'s father testified that, on the afternoon in question, he was standing in his front yard when A.K. ran up to him, crying and out of breath. A.K. was very shaken up and told him that something had happened to her, that a man grabbed her and told her that he "[was] going to have sex with her." A.K.'s father immediately called the police. A few days later, A.K.'s father spotted a man in the neighborhood whom he believed was the man who had grabbed his daughter. A.K.'s father testified that this man walked around their neighborhood "almost daily," and that the man was wearing a "wornout, black pair of Converse" shoes that matched the description given by A.K. A.K.'s father identified defendant in court as the man he saw that day.

¶ 8 Officer Michael Taylor, a juvenile officer for the City of Waukegan, testified that he interviewed A.K. five days after the incident. A.K. first told Taylor about her encounter with D.H., in which D.H. reported that a man had been following her. A.K. then told Taylor that, after she and D.H. parted ways, a man grabbed A.K. by the right arm and asked her, in a Spanish accent, if she wanted to have sex with him. When A.K. replied that she did not, the man told A.K., "You need to." A.K. then tried to pull away from the man's grasp, and when she could not, she kicked the man twice in the shin. At that point, the man let her go, and A.K. ran away. Although A.K. did not get a good look at the man's face, she was able to describe his clothing, including his black tennis shoes. D.H. later identified defendant in a photo lineup as the man who was following her that afternoon.

¶ 9 At the close of evidence, the trial court found defendant not guilty of the indecent solicitation charge. In doing so, the court stated in its written judgment order that there was "conflicting testimony" that left "some doubt" as to whether defendant verbally solicited A.K. for sex.

As to the unlawful restraint, the trial court found that defendant should not be acquitted of that charge and therefore entered a finding of not not guilty.

ΒΆ 10 Following the discharge hearing, the trial court ordered defendant to undergo further mental health treatment. Several months later, as defendant's term of extended treatment was coming to a close, the Illinois Department of Human Services reported to the trial court that defendant "remains Unfit to Stand Trial and, Unlikely to be restored to Fitness." In addition, the Department reported that defendant did not meet the criteria for civil commitment, as he did not pose a serious threat of harm either to himself or to others. At that point, the State filed a motion asking the trial court to certify defendant as a sex offender on the grounds that the unlawful restraint of which defendant was not acquitted was "sexually motivated." See 730 ILCS 150/2(B)(1), (1.5) (West 2008). The trial court granted the State's motion and entered an order (1) finding that defendant did not meet the ...


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