from the Circuit Court of Cook County, No. 14-CR-11336; the
Hon. Bridget Jane Hughes, Judge, presiding.
Michael J. Pelletier and Deborah Nall, of State Appellate
Defender's Office, of Chicago, for appellant.
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Mary L. Boland, and Haley Peck, Assistant
State's Attorneys, of counsel), for the People.
JUSTICE ROCHFORD delivered the judgment of the court, with
opinion. Presiding Justice Hoffman and Justice Cunningham
concurred in the judgment and opinion.
1 Following a bench trial in September 2014, the trial court
convicted defendant, Jerome Bingham, of theft, which was
elevated to a Class 4 felony due to a previous retail theft
conviction, and sentenced him to three years'
imprisonment. Defendant had a prior conviction in 1983 for
attempted criminal sexual assault for which he had not been
required to register as a sex offender because the conviction
occurred prior to enactment of the Sex Offender Registration
Act (Act) (730 ILCS 150/1 et seq. (West 2012)) in
1986. Under section 3(c)(2.1) of the Act (730 ILCS
150/3(c)(2.1) (West 2012)), as amended in 2011,
defendant's 2014 felony theft conviction in this case
required him to register as a sex offender for the 1983
attempted criminal sexual assault. On appeal, defendant
contends (1) the Act is unconstitutional as applied to him;
(2) the Act violates the ex post facto clauses of
the United States and Illinois Constitutions; (3) his theft
conviction was improperly elevated from a Class A misdemeanor
to a Class 4 felony, and the trial court improperly imposed
an enhanced three-year sentence for the Class 4 felony
conviction; and (4) the trial court erroneously imposed a DNA
analysis fee and failed to apply the $5 per day credit for
presentence incarceration to several charges that qualify as
fines. We affirm defendant's conviction, three-year
sentence, and the requirement that he register as a sex
offender. We vacate his DNA analysis fee, credit him with $65
as against his fines, and direct the clerk of the circuit
court to modify the fines and fees order accordingly.
2 I. Defendant's Theft Conviction
was charged with theft after a surveillance camera recorded
him taking several pallets from the unfenced yard of a Kmart
in Norridge, Illinois, at approximately 6:30 p.m. on May 3,
2014. The indictment alleged that defendant committed theft
"in that he, knowingly obtained or exerted unauthorized
control over property, to wit: pallets, of a value less than
five hundred dollars, the property of Kmart, intending to
deprive Kmart, permanently of the use or benefit of said
property, and the defendant has been previously convicted of
the offense [of] retail theft under case number 00125524901,
in violation of Chapter 720 Act 5 section 16-1(a)(1) of the
Illinois Compiled Statutes 1992 as amended."
3 The cause proceeded to a one-day trial on September 11,
2014. At trial, Ali Sahtout testified he works as a security
guard at the Kmart at 4201 North Harlem Avenue in Norridge.
At approximately 6:30 p.m. on May 3, 2014, Mr. Sahtout was in
the Kmart security office monitoring the video cameras when
he saw defendant drive his truck to the receiving area in the
back of the store where storage units and pallets belonging
to Kmart are located. Defendant exited his truck, grabbed a
total of six pallets (two pallets at a time), and put them on
the back of his truck. Then he drove away. The pallets were
valued at $12 each. Defendant was never given permission to
take the pallets.
4 Mr. Sahtout contacted the Norridge police department. About
five minutes later, the police called him back and asked him
to come to a location a half block from the receiving area of
the store. Mr. Sahtout went there and saw that the officers
had pulled defendant over and placed him in a squad car.
5 Mr. Sahtout identified People's exhibit No. 1 as the
video depicting defendant taking the pallets and putting them
in the back of his truck. Mr. Sahtout identified People's
exhibits Nos. 2 through 5 as photographs truly depicting how
defendant's truck appeared on May 3, 2014.
6 Officer Peter Giannakopoulos of the Norridge police
department testified that at approximately 6:30 p.m. on May
3, 2014, he was patrolling the 4200 block of Harlem Avenue.
He was dispatched to the Kmart store a half block away
because there was a report that an African-American man in a
black pickup truck with registration plate 1129940 B had
taken some pallets from the rear of the property.
7 Officer Giannakopoulos arrived at the Kmart receiving area
about two minutes later, and he saw a black pickup truck with
registration plate 1129940 B leaving the area. Defendant was
the driver. The officer curbed the truck and saw several
pallets on the truck's open bed.
8 Officer Giannakopoulos asked Mr. Sahtout to come to his
location to make an identification. Mr. Sahtout came and
identified defendant as the person who had taken the pallets
from the rear of the Kmart. Defendant was placed under
9 Following the testimony of Officer Giannakopoulos, the
parties stipulated that defendant had a previous conviction
for retail theft in case No. 00125524901. The State entered
its exhibits into evidence, and the trial court viewed the
video depicting ...