People v. Clark, 2024 IL 130363 (September). Episode 1070 (Duration 11:28)

State’s petition to deny pretrial release to defendant in this case, which it filed on the same day defendant made his first appearance before a judge, complied with the timing requirements of section 110-6.1(c)(1).

Issue

Section 110-6.1(c)(1) of the Code sets forth the time limitations that control when the State may file a petition for pretrial detention. See 725 ILCS 5/110- 6.1(c)(1) (West 2022). 

The timing of the petition depends on whether defendant is entitled to notice.

The issue here is the timing requirement for a petition for pretrial detention without notice to defendant. In this scenario, section 110- 6.1(c)(1) provides “[a] petition may be filed without prior notice to the defendant at the first appearance before a judge.” 

In resolving this issue, we must determine the meaning of the term “the first appearance” as used in section 110-6.1(c)(1).

§ 109-1

Section 109-1 of the Code sets forth the procedures that must take place upon arrest. See 725 ILCS 5/109-1 (West 2022).

Generally, “[a] person arrested with or without a warrant for an offense for which pretrial release may be denied *** shall be taken without unnecessary delay before” a judge. Id. § 109-1(a).

 Section 109- 1(b) imposes certain duties upon the court when defendant is brought before a judge for the first time. Id. § 109-1(b).

At this “initial appearance” hearing, the judge shall appoint counsel to represent defendant if defendant is indigent, admit defendant to pretrial release, or upon verified petition of the State, proceed with the setting of a detention hearing in accordance with section 110-6.1. Id. § 109-1(b)(2), (4).

Section 109-1(f) requires defendant’s physical presence at any hearing in which conditions of pretrial release are determined,

“unless the accused waives the right to be present physically in court, the court determines that the physical health and safety of any person necessary to the proceedings would be endangered by appearing in court, or the chief judge of the circuit orders use of that system due to operational challenges in conducting the hearing in person.” Id. § 109-1(f).

In addition, “[d]efense counsel shall be given adequate opportunity to confer with the defendant prior to any hearing in which conditions of release or the detention of the defendant is to be considered.” Id. § 109-1(g). 

§110

Article 110 of the Code governs pretrial release and detention. Id. art. 110. 

Section 110-2(a) provides that “[a]ll persons charged with an offense shall be eligible for pretrial release before conviction.” Id. § 110-2(a). 

“It is presumed that a defendant is entitled to release on personal recognizance on the condition that the defendant attend all required court proceedings and the defendant does not commit any criminal offense, and complies with all terms of pretrial release.” Id.

However, pretrial release may be denied for persons charged with certain enumerated offenses and only after the court has held “a hearing under Section 110-6.1.” Id.

Section 110-6.1 sets forth the procedures governing the denial of pretrial release. Section 110-6.1 defines the offenses for which pretrial release may be denied. Id. § 110-6.1(a)(1)-(8). The State must file a verified petition stating the “grounds upon which it contends the defendant should be denied pretrial release, including the real and present threat to the safety of any person or persons or the community, based on the specific articulable facts or flight risk, as appropriate.” Id. § 110-6.1(d)(1). I

 If the State files a second or subsequent petition, it is required “to present a verified application setting forth in detail any new facts not known or obtainable at the time of the filing of the previous petition.” Id. § 110-6.1(d)(2). 

Once the State files a timely petition to deny pretrial release, “the court shall immediately hold a hearing on the petition unless a continuance is requested.” Id. § 110-6.1(c)(2). The court “may deny or grant the request for continuance,” and if it grants a continuance, “the hearing shall be held within” 24 to 48 hours of “defendant’s first appearance,” depending on the offense charged. Id.

Prior to the hearing, the State must provide defendant with “copies of the defendant’s criminal history available, any written or recorded statements, and the substance of any oral statements made by any person, if relied upon by the State in its petition, and any police reports in the prosecutor’s possession at the time of the hearing.” Id. § 110-6.1(f)(1). Like section 109-1, section 110-6.1 requires the hearing to be conducted in person,3 defendant also has the right to be represented by counsel (id. § 110-6.1(f)(3)), and counsel “shall” be given adequate opportunity to confer with the defendant before any hearing at which conditions of release or detention are considered (id.). Defendant is permitted to testify, present witnesses, and cross-examine witnesses at the hearing. Id. Both the State and defendant “may present evidence at the hearing by way of proffer based upon reliable information.” Id. § 110-6.1(f)(2). The State bears the burden of proving by clear and convincing evidence that (1) the proof is evident or presumption great that defendant committed a detainable offense; (2) defendant poses a real and present threat to any person, persons, or the community or is a flight risk; and (3) no conditions could mitigate this threat or risk of flight. Id. § 110-6.1(a), (e). 

“Decisions regarding release, conditions of release, and detention prior to trial must be individualized, and no single factor or standard may be used exclusively to order detention. Risk assessment tools may not be used as the sole basis to deny pretrial release.” Id. § 110-6.1(f)(7). In making this determination, the circuit court is to consider certain factors including, but not limited to, the nature and circumstances of the offense; the history and characteristics of the defendant; the identity of any person or persons to whose safety the defendant is believed to pose a threat and the nature of the threat; any statements made by, or attributed to, the defendant, together with the circumstances surrounding them; the age and physical condition of the defendant; the age and physical condition of the complaining witness; whether the defendant is known to possess or have access to any weapon or weapons; whether, at the time of the current offense or any other offense or arrest, the defendant was on probation, parole, aftercare release, mandatory supervised release or other release from custody pending trial, sentencing, appeal 

or completion of sentence for an offense under federal or state law; and any other factor including those listed in section 110-5 of article 110 (id. § 110-5) deemed by the court to have a reasonable bearing upon the defendant’s propensity or reputation for violent, abusive, or assaultive behavior, or lack of such behavior. Id. § 110- 6.1(g)(1)-(9). If the court finds that the State has met its burden, it shall enter an order for detention. Id. § 110-6.1(h). 

In interpreting the above provisions, we must be mindful that a court of review should consider the reason for the law, the problems to be remedied, and the objects and purposes sought by the law. People v. Donoho, 204 Ill. 2d 159, 171-72 (2003). To that end, the Code provides that the provisions governing pretrial release and detention are to 

“be liberally construed to effectuate the purpose of relying on pretrial release by nonmonetary means to reasonably ensure an eligible person’s appearance in court, the protection of the safety of any other person or the community, that the person will not attempt or obstruct the criminal justice process, and the person’s compliance with all conditions of release, while authorizing the court, upon motion of a prosecutor, to order pretrial detention of the person under Section 110-6.1 when it finds clear and convincing evidence that no condition or combination of conditions can reasonably ensure the effectuation of these goals.” 725 ILCS 5/110-2(e) (West 2022). 

This Is What Matters

Our review of the above provisions reveals an emphasis on two important elements of a pretrial detention hearing:

 defendant’s presence and the court’s duty to make an informed decision regarding pretrial release or detention.

The purpose for this is readily apparent. It ensures defendant is provided with the procedural safeguards provided by the Code, such as the right to counsel. Defendant’s presence also allows defendant to challenge the State’s evidence and present their own evidence relevant to the factors the court should consider.

Subjecting the petition to this type of adversarial testing ensures that the circuit court is provided with enough information to make an informed, individualized decision. See id. § 110-6.1(f)(7).

Analysis

With this in mind, we return to the specific question presented in this appeal: under section 110-6.1(c)(1), when must the State file its petition to deny pretrial release without notice to defendant? To answer this question, we are required to determine the meaning of the term “first appearance” as used in section 110-6.1(c)(1). 

Defendant and the appellate court take the broad view of the term “first appearance,” interpreting it to mean the first appearance by any party, including the State’s ex parte appearance before the court when it filed the criminal complaint and sought a warrant for defendant’s arrest. The State, by contrast, takes the narrow view that the first appearance is limited to the first time a defendant is brought before a judge. We agree with the State.

 In the realm of bail proceedings, the “initial appearance” is an event defined as a “criminal defendant’s first appearance in court to hear the charges read, to be advised of his or her rights, and to have bail determined.” Black’s Law Dictionary (11th ed. 2019). This definition is consistent with the “initial appearance” hearing defined in section 109-1 (725 ILCS 5/109-1(a) (West 2022)), which is an event that occurs when a defendant is first brought before a judge. Despite the legislature’s use of the word “first” in section 110-6.1(c)(1) and the word “initial” in section 109-1, we believe the legislature intended the terms to have the same meaning because this is the only interpretation that is consistent with the other relevant provisions governing pretrial release.

“[U]pon initial appearance of a person before the court,” the court is required to appoint counsel, if necessary, and the court admits defendant to pretrial release or, upon verified petition of the State, proceeds with the setting of a detention hearing. Id. § 109-1(b)(2), (4). 

If the State files its petition at this stage, the detention hearing is to be set and held “immediately” upon the State’s verified petition under section 110-6.1(c)(2) (id. § 110-6.1(c)(2)). 

In that case, the court holds a detention hearing at defendant’s first appearance before a judge. A hearing held in this manner satisfies the requirement that defendant is physically present and provides defendant with the benefit of counsel.

It also provides defendant with a meaningful opportunity to subject the petition to adversarial testing because it allows defendant to challenge the State’s evidence and present his own evidence in opposition. The result of this process ensures the court makes an informed, individualized decision regarding pretrial detention.

Key Finding

This is what the legislature envisioned.

Therefore, we conclude that “first appearance” must mean defendant’s first appearance under section 6.1(c)(1). The plain language of the current version of the Code is clear that the filing of a petition to deny pretrial release and a hearing on the petition occur simultaneously at defendant’s first appearance before the court.

Holding

Accordingly, we find the State’s petition to deny pretrial release to defendant in this case, which it filed on the same day defendant made his first appearance before a judge, complied with the timing requirements of section 110-6.1(c)(1). Consequently, we reverse the judgment of the appellate court. We express no opinion on the merits of the additional issues raised by defendant in the appellate court. The appellate court resolved the appeal solely on the ground that the petition was untimely under section 110-6.1(c)(1). Having reversed that decision, we remand the matter to the appellate court to consider the alternative issues raised by defendant. 

For the above reasons, we reverse the judgment of the appellate court. The matter is remanded to the appellate court to consider the alternative issues raised by defendant. 

See Also People v. Milner, 2024, IL App (1st) 241284 (October), which came to the same conclusion as this case.

---

People v. Farris, 2024 IL App (5th) 240745 (September). Defendant was released on pretrail release with EHM on an Agg Batt and UUW Felon charge. The state filed a second petition to detain when he repeatedly kept violating his EHM. Statute does not allow for that. State can’t interpret “sanction behavior” as new information that the judge did not have when it origigianlly decided to release him.

The first issue the defendant raises on appeal is whether the circuit court erred in ordering the defendant detained, arguing that the State lacked a statutory basis to file a second petition to deny pretrial release. The defendant states that section 110-6.1(c)(1) allows the State to file a petition to deny pretrial release when a defendant first appears before a judge or within 21 calendar days of a defendant’s arrest and release. Id. § 110-6.1(c)(1). If the State’s petition is denied and the defendant is released, the defendant states that section 110-6(a) provides that a petition to revoke may be filed if the defendant had been charged with a detainable offense and then commits another felony or Class A misdemeanor. Id. § 110-6(a). As such, the defendant argues that the above provisions are the statutory means to detain a defendant prior to trial. The defendant further argues that if a defendant is on pretrial release and commits a noncriminal act prohibited by the circuit court’s conditions of release, the remedy is to file a petition for sanctions pursuant to section 110-6(c)(4), (d). Id. § 110-6(c)(4), (d). Therefore, the defendant argues that he committed the noncriminal acts of unauthorized stops and that the proper procedure was a petition seeking sanctions, not a petition to revoke or a subsequent petition to detain. 

The defendant also argues that section 110-6.1(d)(2) does not authorize a second petition to deny pretrial release, based on the facts of this case. According to the defendant’s argument, the plain language of section 110-6.1(d)(2) established that a second detention petition is only permitted where the State has discovered new facts relevant to the initial detention ruling that were unknown or not obtainable when the initial petition was filed. The defendant argues that when section 110-6.1(d)(2) is read in conjunction with the other statutory provisions above, it becomes clear that the purpose of section 110-6.1(d)(2) is to allow the circuit court to reconsider its initial decision with a more complete understanding of the facts as they existed at the time of the filing of the initial petition. Therefore, the defendant argues that section 110-6.1(d)(2) does not authorize the filing of a second petition to deny pretrial release, based on facts that occurred after the filing of the first petition, such as the commission of a new offense or a violation of pretrial release conditions, since those circumstances are specifically addressed elsewhere in the statutory scheme. 

If the defendant is granted pretrial release, section 110-6 becomes the controlling provision with regard to “[r]evocation of pretrial release, modification of conditions of pretrial release, and sanctions for violations of conditions of pretrial release.” Id. § 110-6. Section 110-6(a) states as follows: “When a defendant has previously been granted pretrial release under this Section for a felony or Class A misdemeanor, that pretrial release may be revoked only if the defendant is charged with a felony or Class A misdemeanor that is alleged to have occurred during the defendant’s pretrial release after a hearing on the court’s own motion or upon the filing of a verified petition by the State.” Id. § 110-6(a). We note that section 110-6.1(a) requires a qualifying offense to initially detain a defendant and 110-6(a) requires a subsequent felony or Class A misdemeanor while on pretrial release in order to revoke pretrial detention. Section 110-6(a), however, does not require proof of the defendant’s real and present threat or proof that no condition or combinations of conditions could mitigate that threat. Id.; see People v. McWilliams, 2024 IL App (4th) 240406-U, ¶ 17.

For offenses other than a felony or Class A misdemeanor that are committed while on pretrial detention, the State may file a verified petition requesting a hearing for sanctions following the procedures in section 110-6(c)-(f). 725 ILCS 5/110-6(c)-(f) (West 2022); see People v. Barner, 2023 IL App (1st) 232147, ¶ 21 (court may not revoke a defendant’s pretrial release merely for failing to appear, but the State can seek, and the court may enter, sanctions). In this manner, the statute differentiates “revocation” violations and “sanctions” violations. Sanctions violations are noncriminal or low-level criminal violations, i.e., violations of conditions of pretrial release set by the circuit court. Revocation violations, however, must rise to the level of a felony or Class A misdemeanor.

We further take notice of section 110-6(b), which states as follows: “(b) If a defendant previously has been granted pretrial release under this Section for a Class B or Class C misdemeanor offense, a petty or business offense, or an ordinance violation and if the defendant is subsequently charged with a felony that is alleged to have occurred during the defendant’s pretrial release or a Class A misdemeanor offense that is alleged to have occurred during the defendant’s pretrial release, such pretrial release may not be revoked, but the court may impose sanctions under subsection (c).” 725 ILCS 5/110-6(b) (West 2022). 

Holding: Each of the above provisions set forth specific conditions in which a circuit court may deny pretrial release, revoke pretrial release, or impose sanctions for violations of pretrial release. Viewing section 110-6.1(d)(2) in light of the above provisions, we do not believe that it was the legislature’s intent to provide a means by which the State may bypass the requirements of these sections by filing a subsequent petition to deny pretrial release. 

As such, we find that the qualifying phrase limited the new facts to those related to the initial petition that could have had a bearing on the circuit court’s initial detention determination, e.g., locating a witness, locating video evidence, lab or expert results received posthearing, etc. 

---

People v. Vincent, 2024 IL App (4th) 240218 (September). Defendant was detained on an agg bat to officer which, of course, is not detainable. But defendant did not preserve this appeal. Steiggman held that this was not structural error in part because the trial court has numerous opportunities to cure the error everytime defendant appears in court.  And further there was no ineffeictie assisantnce. Because (1) defendant concedes that she was detainable pursuant to section 110- 6(a) of the Code and (2) the Code authorized the trial court to move to revoke pretrial release and conduct a hearing on the same on its own motion (725 ILCS 5/110-6(a) (West 2022)), defendant cannot establish any prejudice from the technical defect she has identified. Also, We note that at a revocation hearing, the State must prove, “by clear and convincing evidence, that no condition or combination of conditions of release would reasonably *** prevent the defendant from being charged with a subsequent felony or Class A misdemeanor” (id.), which is what both the State and defense counsel actually argued at the hearing, suggesting that counsel understood that the State’s petition for detention was more appropriately characterized as a petition for revocation. See Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002) (reaffirming the well-settled rule that the substance of a motion’s content controls over its title when determining its nature). In this situation, defendant asks this court to elevate form over substance by assuming that the State (1) was not seeking a revocation and (2) could not have easily (a) restyled its petition as one to revoke pretrial release rather than deny it and (b) refiled the petition under the 24-CM-10 case number instead of in the new felony case. We decline to do so.  

---

People v. Davidson, 2024 IL App (1st) 240762 (September). Before change in the law defendant posted $300,000 cash to get out on bail. He was then arrested twice for UUW F and bond was reovoked. Later those cases were dismissed but trial judge still used them to revoke his bail and hold him with no Bond, as he was held when law changed. He was considered 3rd type of detainne when law changed and never had had his pretrial release status revoked due to new offenses. He lost this appeal because the rule saying you should be released upon dismissal of the new charge that lead to your release revocation did not apply to him.

---

People v. Drew, 2024 IL App (5th) 240697 (September). – I think it is some appeal issue – this guy fired a gun at his wife and he was detained – that was not reversed.

---

People v. Williams,  2024 IL App (1st) 241013 (September). Again not sure why this was marked as an opinion – he raped a 17 year old and was detained – that was proper – may some appellated standards of review are still being worked out – and maybe they think judge needs to make a beter record on why other conditions won’t work.

---

People v. Cooksey, 2024 IL App (1st) 240932 (September). Attempt murder for shooting at someone and he is detained – but his appeal on detention is dismissed without prejudice. The required course of action, then, is to dismiss defendant’s appeal without prejudice because the failure to file the required Rule 604(h)(2) motion precludes us from reaching the merits of defendant’s appeal.