People v. Tetter

2018 IL App (3d) 150243 Opinion filed January 31, 2018 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2018 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0243 v. ) Circuit No. 13-CF-291 ) KYLE J. TETTER, ) ) Honorable Kathy Bradshaw-Elliott, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________ JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Lytton concurred in the judgment and opinion. Justice Wright concurred in part and dissented in part, with opinion. OPINION ¶1 Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury found that defendant continued this relationship after learning S.K. was 16 and convicted him of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)). After his conviction, the trial court sentenced defendant to 180 days in county jail, 4 years’ sex offender probation, and mandatory lifetime sex offender registration. ¶2 On appeal, defendant seeks a new trial; he alleges the trial court erred in admitting and publishing a voicemail recording during defendant’s cross-examination. Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2012)), Sex Offender Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2012)), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops (720 ILCS 5/11-9.3 (West 2012)), residence and presence restrictions within 500 feet of a public park (720 ILCS 5/11-9.4-1 (West 2012)), mandatory annual driver’s license renewal (730 ILCS 5/5-5-3(o) (West 2012)), and prohibiting defendant from petitioning to change his name (735 ILCS 5/21­ 101 (West 2012)) impose disproportionate punishment as applied to him. We refer to these statutes collectively as “sex offender statutes” herein. ¶3 We affirm the trial court’s evidentiary ruling regarding the voicemail recording. However, we find that defendant’s lifetime subjection to the sex offender statutes constitutes grossly disproportionate punishment as applied to him. The facts underlying defendant’s conviction do not suggest that he is a dangerous sexual predator who must be banned from areas near schools or public parks, or who must be monitored by law enforcement authorities and presented to the public as a dangerous sexual predator. ¶4 FACTS ¶5 On July 12, 2013, the State charged defendant with aggravated criminal sexual abuse, a Class 2 felony (720 ILCS 5/11-1.60(d) (West 2012)). On October 4, 2013, defendant pled guilty in exchange for four years’ sex offender probation and no jail time. On November 1, defendant submitted a motion to withdraw his guilty plea; he alleged that he did not know pleading guilty meant he would be subjected to the sex offender statutes’ registration requirements and restrictions for life. Defendant’s motion also alleged an affirmative defense—he reasonably believed S.K. to be 18 each time they had sex. The trial court granted defendant’s motion on December 20. Defendant’s trial ...

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