People v. Silva, 2024 IL App (2d) 240118 (June).  Episode 1054 (Duration 9:25)

Held on bond of $1,000,000 for 6 years on two charges of predatory criminal sexual assault. Then he filed a motion for pretrial release. They took 28 days to have the hearing and 100 days before judge ruled on denying it.

Defendant argues that the trial court denied him the right to a fair hearing on his section10-5(e) motion by waiting 28 days to hear that motion and an additional 100 days before issuing a ruling. Likewise, the trial court denied his right to a fair hearing by waiting 27 days to hold a section 110-6.1 hearing and an additional 100 days to rule on the State’s verified petition to deny pretrial release, where section 110-6.1(c)(2) allows at most a continuance of 48 hours from a defendant’s first appearance. 

Section 110-7.5(b) of the Code sets forth procedures for those defendants who remained in pretrial detention following the effective date of the amendments to the Code. Defendants who remain “in pretrial detention after having been ordered released with pretrial conditions, including the condition of depositing security, shall be entitled to a hearing under subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). This provision applies to defendant, though it notably does not indicate a time period in which the hearing is required to be held. Nor does section 110- 5(e) specify a time period in which such a hearing is to be held, stating, “If a person remains in pretrial detention 48 hours after having been ordered released with pretrial conditions, the court shall hold a hearing to determine the reason for continued detention.” Id. § 110-5(e).

Section 110-6.1(c)(2) does provide a time period in which a hearing must be held on a State’s verified petition to deny pretrial release but does not appear to contemplate all situations in which such a petition may arise. Section 110-6.1(c)(2) states, “Upon filing, the court shall immediately hold a hearing on the petition unless a continuance is requested.” Id. § 110-6.1(c)(2). Such a continuance may be either for 24 hours from the defendant’s first appearance if the defendant is charged with a Class 4 felony or misdemeanor offense or within 48 hours if the defendant is charged with a Class 3 felony or above. Id. As the provisions regarding continuances reference the defendant’s first appearance, and it would be impracticable to hold a hearing immediately in an instance where the defendant is not before the court—such as where a defendant has been released from custody or the State files a petition to deny pretrial release in response to a motion of the defendant—the timing provisions of section 110-6.1(c)(2) must apply only to instances in which the petition to deny pretrial release is filed at the defendant’s first appearance or another proceeding in which the defendant is before the court at the time of filing. 

As such, there is no explicit timeframe during which the trial court must hear defendant’s section 110-5(e) motion or the State’s responsive section 110-6.1 petition to deny pretrial release. 

That being said, the legislature instructs us that the amended Code “shall be liberally construed to effectuate the purpose of relying on pretrial release by nonmonetary means.” Id. § 110-2(e). Likewise, there is a clear policy throughout the amended Code disfavoring lengthy detention prior to an adjudication regarding pretrial detention. See id. § 110-6(a) (“the revocation hearing shall occur within 72 hours of the filing of the State’s petition or the court’s motion for revocation”); id. § 110-6.1(c)(2).

Accordingly, while the Code does not provide for an explicit period of time in which a trial court must hold a hearing on a section 110-5(e) motion or a responsive section 110- 6.1 petition, we find that the trial court is required to hold a hearing and issue its ruling within a reasonable amount of time.

The hearing on defendant’s motion was held 28 days from the date it was filed. The only hearings relating to pretrial detention that the amended Code contemplates being held so long after the filing date are motions to reconsider in cases where defendants are being held without bond under the previous statutory schema. See id. § 110-7.5(b) (90 days for defendants who are held because they are dangerous and 60 days for defendants who pose a flight risk). 

Further, we reject the State’s argument that the hearing on the defendant’s motion and the State’s petition was timely because defendant requested a continuance. While the September 27, 2023, continuance order indicates that the continuance was on the motion of defendant, defendant’s later assertion, at the October 24, 2023, hearing, that he had not requested a continuance went undisputed by the State or the trial court. Additionally, the September 27, 2023, continuance order was prepared by the State, which also prepared the October 24, 2023, continuance order incorrectly attributing that continuance solely to defendant, which calls the accuracy of the September 27, 2023, continuance order further into doubt.

Regardless, any continuance requested by defendant would not excuse the fact that the trial court did not issue its ruling for another 100 days after it held the hearing. 

The Code contemplates detaining defendants for not more than 90 days, excepting delay caused by the granting of certain continuance requests of the parties. Id. § 110-6.1(i) (“[T]he defendant shall be brought to trial on the offense for which he is detained within 90 days after the date on which the order for detention was entered. If the defendant is not brought to trial within the 90-day period required by the preceding sentence, he shall not be denied pretrial release.”). 

As the 90-day period does not begin to run until an order of detention is entered, the trial court effectively tolled the 90-day period by failing to rule on the motion and the petition for over 127 days, more than doubling the length of defendant’s pretrial detention as contemplated by the Code 

This unreasonable delay in issuing its ruling constitutes a clear abuse of discretion by the trial court, made more egregious by the fact that defendant had already been detained for six years prior to his motion, remaining in pretrial detention for more than seven years at the time of writing. 

This is precisely the type of situation the legislature sought to remedy with its recent amendments to the Code. The trial court’s delay in hearing and ruling on the motion and the petition in the instant case was manifestly unreasonable and therefore erroneous. See id. § 110-6(a) (“the revocation hearing shall occur within 72 hours of the filing of the State’s petition or the court’s motion for revocation”); id. § 110-6.1(c)(2). 

As the trial court’s conduct in the instant case was clearly unreasonable, we need not determine the precise limits of when a trial court must hold a hearing and issue a ruling on a defendant’s motion. However, based on other limitations from the Code regarding when the trial court must hold a hearing for a detained defendant, a period of seven days would appear to be the upper limit.

court must hold a hearing for a detained defendant, a period of seven days would appear to be the upper limit.

The Code prescribes a seven-day period in which the trial court must hold a hearing on motions to reconsider the conditions of pretrial release in instances where defendants were being held without bond under the previous schema but are not eligible for pretrial detention under the amended section 110-6.1 and therefore are presumptively eligible for release barring extenuating circumstances. Id. § 110-7.5(b)(3).

The only periods exceeding seven days are those for holding hearings on motions to reconsider the conditions of pretrial release in instances where defendants were being held without bond under the previous schema and are eligible for pretrial detention under the new schema based on a finding of dangerousness or flight risk at 90 days and 60 days respectively. All other periods are less than seven days. See id. §§ 110-6(a), 110-6.1(c)(2)

Having determined that the trial court’s failure to hold a hearing in a timely manner was an abuse of discretion, we must now determine the appropriate remedy. In an unpublished order, the Fourth District considered the appropriate remedy where the trial court failed to hold a hearing on the State’s section 110-6.1 petition to deny pretrial release within 48 hours of the defendant’s first appearance, notwithstanding the State’s request for a continuance. People v. McCarthyNelson, 2024 IL App (4th) 231582-U, ¶¶ 5-6. The McCarthy-Nelson court ultimately concluded that the appropriate remedy for failure to hold a hearing in the time prescribed by the section 110- 6.1(c)(2) “is to remand the case to the trial court for the purpose of promptly holding a hearing to determine the least restrictive conditions of defendant’s pretrial release.” Id. ¶ 18. 

The McCarthy-Nelson court relied on People v. Gil, 2019 IL App (1st) 192419. In Gil, the defendant filed an appeal pursuant to Illinois Supreme Court Rule 604(c) (eff. July 1, 2017), arguing that the trial court erred in detaining him without bail, where the State had not filed a  verified petition to deny bail as required by the prior version of section 110-6.1 (725 ILCS 5/110- 6.1 (West 2016)). Gil, 2019 IL App (1st) 192419, ¶ 15. The reviewing court agreed and determined that the appropriate remedy was to remand for proceedings to set an appropriate amount of bail and other conditions of release. Id. ¶ 19

Following the reasoning of McCarthy-Nelson and Gil, we reverse the trial court’s order denying pretrial release and remand for a hearing to determine conditions of pretrial release.

While we need not reach the issue of whether there was clear and convincing evidence to support the finding that no condition or combination of conditions could mitigate the real and present threat to the safety of any person or persons or the community in this case, we will briefly address the matter. 

A review of the record reveals that the trial court failed to make sufficient findings regarding why less restrictive conditions would not avoid a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case as required by section 110-6.1(h)(1) of the Code. 725 ILCS 5/110-6.1(h)(1) (West 2022); People v. Stock, 2023 IL App (1st) 231753, ¶ 20.

 The trial court considered only the age of defendant and the victims, which are elements of the offenses for which he is charged, and defendant’s 1994 conviction of manufacture and delivery of cocaine, which being over 30 years old at this point is of limited relevance.

We reverse the judgment of the circuit court of De Kalb County and remand for a hearing to determine conditions of pretrial release. 

Reversed and remanded. 

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People v. Smith, 2024 IL App (2d) 240168 (June).  Defendant Duka M. Smith appeals from the circuit court’s order detaining him prior to trial on charges of armed violence and attempted first degree murder. He contends that the court erred by accepting the State’s proffered evidence and by rejecting his proffered evidence that his use of deadly force may have been justified in defense of another. He asks us, prior to a trial, to essentially force the circuit court to accept the defense’s version of events leading up to the stabbing he is charged with committing and to conclude that defendant is not so dangerous as to deny him pretrial release, because the stabbing might have been in defense of another. We affirm. Defendant brutally stabbed a man who was lying on the ground defenseless. He did not die and it was on video. The evidence is largely undisputed and by asserting self-defense, or defense of others, defendant necessarily concedes that he committed the acts with which he has been charged. Such a claim “presupposes that the accused committed the act and invokes the defense as a justification.” (Internal quotation marks omitted.) People v. Lewis, 2015 IL App (1st) 122411, ¶ 59. While there were inconsistent accounts from one witness, defendant’s act of standing over Rodgers and stabbing him was recorded on video. Curiously, there is no mention of the female appearing in the video at all—the woman who defendant reasonably felt was in such imminent danger that deadly force was required. Defendant’s arguments cannot prevail in light of our standard of review. Under the manifest-weight standard, “ ‘[a] reviewing court will not substitute its judgment for that of the trial court regarding the credibility of witnesses, the weight to be given to the evidence, or the inferences to be drawn.’ ” In re Parentage of W.J.B., 2016 IL App (2d) 140361, ¶ 25 (quoting Best v. Best, 223 Ill. 2d 342, 350-51 (2006)). It was the province of the circuit court to determine whether there was sufficient evidence of the crime, defendant’s dangerousness, and the viability of his release. The question before us is not whether the evidence might support a different theory of the offense; rather, it is whether there was sufficient evidence to support the circuit court’s findings so long as they were not unreasonable. See People v. Pintos, 133 Ill. 2d 286, 291 (1989) (explaining, “the reasonable hypothesis of innocence standard of review is no longer viable in Illinois”). Here, none of the circuit court’s findings on the evidence, or the inferences it drew from that evidence, were unreasonable. In Illinois, the question of whether a defendant’s use of force was ultimately justified is a matter resolved at trial, for “it is the responsibility of the trier of fact to fairly *** resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Internal quotation marks omitted.) People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009); cf. 1 Jens D. Ohlin, Wharton’s Criminal Law § 14:7 (16th ed. Sept. 2023 Update). A claim of justification is, of course, relevant at a pretrial release hearing, but merely because a defendant mightraise a defense at trial is not dispositive of pretrial release concerns. Similarly, defendant’s reliance on the presumption of innocence is misplaced. The State may “permissibly detain a person suspected of committing a crime prior to a formal adjudication of guilt,” and the “confinement of such persons pending trial is a legitimate means of furthering th[e] [State’s] interest.” Bell v. Wolfish, 441 U.S. 520, 534 (1979) (citing Gerstein v. Pugh, 420 U.S. 103, 111 (1975), and Stack v. Boyle, 342 U.S. 1, 4 (1951)). Consequently, the presumption of innocence, a presumption that remains intact until a judgment of conviction, has “no application to a determination of the rights of a pretrial detainee *** before his trial has even begun.” Id. at 533; People v. Presley, 2023 IL App (5th) 230970, ¶ 39. In our view, the circuit court correctly rejected defendant’s attempt to put the cart before the horse. Defendant’s emerging claim of justification and the presumption of innocence simply do not negate judicial findings that there is sufficient evidence to detain him prior to trial.

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People v. Rivera, 2024 IL App (1st) 240520 (June).  Defendant Manuel Rivera is charged with three misdemeanors, domestic battery, criminal damage to property, and assault, under case number 24-DV-70159, and arson under case number 24-CR-01126. The trial court refused, stating, “It looks like he’s filed an appeal on this case. So I’m gonna [sic] decline to hear the conditions of release, et cetera. I cannot consider that portion. I’ve lost jurisdiction for the appeal. I have—keep jurisdiction for the rest of the case.” Defense counsel argued that nothing in Illinois Supreme Court Rule 604(h) (eff. Dec. 7, 2023), prohibited the trial court from considering detention or release issues while an appeal is pending. On appeal, defendant raises only one argument: that the trial court erred by declining to fulfill its statutory obligation to find whether defendant’s continued detention is necessary at each court date. We agree. The general rule is that the filing of a notice of appeal divests the trial court of jurisdiction to enter any order involving a matter of substance and causes the jurisdiction of the appellate court to attach instanter. For the purposes of interlocutory appeals under Rule 604(h), the rule provides another exception which states: “Jurisdiction of the Circuit Court. The circuit court shall retain jurisdiction to proceed with the case during the pendency of any appeal from an order entered pursuant to sections 110-5, 110-6, and 110-6.1 of the Code of Criminal Procedure of 1963.” Ill. S. Ct. R. 604(h)(6) (eff. Dec. 7, 2023).  Section 110-6.1 of the Code imposes a continuing obligation on the trial court to reevaluate the necessity of a defendant’s detention following an initial detention order. Specifically, “[a]t each subsequent appearance of the defendant before the court, the judge must find that continued detention is necessary to avoid a real and present threat to the safety of any person or persons or the community, based on the specific articulable facts of the case, or to prevent the defendant’s willful flight from prosecution.” 725 ILCS 5/110-6.1(i-5) (West 2022). Read together, these two provisions demonstrate that the trial court has jurisdiction to consider whether continued detention is necessary while an interlocutory appeal under Rule 604(h) is pending. The Code contemplates that the trial court must make a finding about the necessity of continued detention at each and every court appearance, regardless of whether a defendant requests such a finding. 725 ILCS 5/110-6.1(i-5) (West 2022). Furthermore, nowhere in the Code does it state that the trial court is relieved of its obligation to make this finding while a defendant has an appeal pending. Likewise, Rule 604(h) does not explicitly divest the trial court of its duties under section 110-6.1(i-5) of the Code while an interlocutory appeal is pending. Ill. S. Ct. R. 604(h) (eff. Dec. 7, 2023). To the contrary, Rule 604(h) explicitly mandates that the trial No. 1-24-0520B – 8 – court retains jurisdiction to “proceed with the case during the pendency” of an appeal stemming from a detention or pretrial release order. Id. It follows that one of the things that must happen as the trial court “proceed[s] with the case” is to continually re-examine whether continued detention is necessary, as the Code requires. 725 ILCS 5/110-6.1(i-5) (West 2022). The trial court had jurisdiction to determine whether defendant’s continued detention was necessary despite defendant’s pending appeal challenging his initial detention, and we remand so that the trial court can make that determination as required by the Code. ¶ 28 III. CONCLUSION ¶ 29 For the foregoing reasons, we reverse the trial court’s judgment and remand for further proceedings. ¶ 30 Reversed and remanded.

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People v. Walton, 2024 IL App (4th) 240541 (June).  After his initial pretrial release on conditions was revoked, defendant Lee C. Walton was detained prior to trial pursuant to section 110-6 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6 (West 2022)), Subsequently, the circuit court found that defendant’s continued detention was reasonably necessary to ensure his appearance at court hearings and to prevent the commission of a future felony or Class A misdemeanor. 725 ILCS 5/110-6(j) (West 2022). Defendant was charged by information in Macoupin County case No. 23-CF-275 with two counts of aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022)) (Class 2 felony); criminal trespass to a residence (id. § 19-4(a)(2)) (Class 4 felony); and aggravated assault involving the use of a deadly weapon (id. § 12-2(c)(1)) (Class A misdemeanor). The incident occurred on the 900 block of Johnson Street in Carlinville, Illinois. The State initially did not petition the court to detain defendant pending trial pursuant to the Code. See 725 ILCS 5/110- 6.1(a) (West 2022). On December 17, 2023, defendant was granted pretrial release on the following conditions relevant here: (1) the mandatory condition that he not violate any criminal statute of any jurisdiction (id. § 110-10(a)(4)) and (2) the additional condition that he not enter the 900 block of Johnson Street in Carlinville, Illinois (see id. § 110-10(b)(4)). About two weeks after being granted pretrial release, defendant was charged with six new offenses in Macoupin County case No. 24-CF-2: aggravated battery of a peace officer (720 ILCS 5/12-3.05(d)(4) (West 2022)) (Class 2 felony); criminal trespass to a residence (id. § 19-4(a)(2)) (Class 4 felony); two counts of resisting arrest (id. § 31-1(a)) (Class A misdemeanor); battery (id. § 12-3(a)(2)) (Class A misdemeanor); and criminal trespass to land (id. § 21-3(a)(2)) (Class B misdemeanor). The charged events are alleged to have occurred on January 3, 2024, on the 900 block of Johnson Street in Carlinville.On January 4, the State filed a verified petition to revoke defendant’s pretrial release in case No. 23-CF-275 pursuant to section 110-6(a) of the Code (725 ILCS 5/110-6(a) (West 2022)), contending that defendant’s conduct on January 3 demonstrated that he had violated the conditions of his release and that detention was necessary to prevent him from being charged with a subsequent felony or Class A misdemeanor. The State also filed a petition for sanctions based on the same conduct. See id. § 110-6(e)(1). Following arguments, the circuit court granted the State’s petition to revoke pretrial release, finding “by clear and convincing evidence for the reasons stated on the record that no condition or combination of conditions of release would reasonably” prevent defendant from being – 4 – charged with a subsequent felony or Class A misdemeanor. On appeal, defendant argues his continued detention was not necessary when the main issue surrounding his dangerousness—his mental health crisis—had passed and the only way he could obtain necessary services was to be released from jail. Before addressing the particulars of this case, it is useful to understand the nature of the Act’s provisions for changes in, or subsequent circuit court review of, orders relating to detention. As noted above, a circuit court always possesses the inherent authority to change its interlocutory rulings. However, we proceed with the understanding that a circuit court’s review of the need for a defendant’s continued detention under section 110-6(j) would require the defendant to demonstrate some “new information or a change in circumstance” in order to demonstrate a right to a change in detention status. See id. § 110-6(j). The appeal in this case is not from the circuit court’s January 4, 2024, revocation order but from its March 18 order finding the necessity for continued detention under section 110-6(j). As explained above, the Code required defendant to present new information or a change in circumstances to demonstrate a right to a change in his detention status. However, he also offered up some new information: that the mental health crisis that led to his detention had stabilized, that mental health services for his continued recovery were not available in the jail, and that the CPAP machine used to address his sleep apnea was not functioning and could not be fixed while he was in jail.  It has been held that section 110-6.1(i-5)’s parallel provision for review does not require a new evidentiary hearing, nor does it “prescribe a standard of proof or place a burden of proof on any party.” Thomas, 2024 IL App (1st) 240479, ¶¶ 14-15. Section 110-6.1(i-5) has also been interpreted to mean that the “continued detention” decision is the same as the initial detention decision but under a “less demanding standard.” 725 ILCS 5/110-6.1(i-5) (West 2022) We believe that the same observations are true with respect to section – 12 – 110-6(j), the provision at issue here. The only difference between the two provisions is the type of misconduct to be guarded against by the imposition of conditions (i.e., a threat to safety under section 110-6.1(i-5), versus commission of a felony or Class A misdemeanor under section 110- 6(j)). As for defendant’s argument that his mental health crisis has “stabilized” since the time of the January 3 incident, the record gives little detail in support of this contention. Furthermore, while it is undoubtedly true that defendant’s mental health needs could be better addressed were he out of custody, that fact does not obviate the concern that his release on conditions has once proven to be ineffective in guarding against reoffending. It is also unclear why, if defendant was permitted to bring a CPAP machine into the jail, it was necessary that he (rather than a friend or family member) must personally attend to its repair or replacement. The “new information” or changes in circumstance argued by defendant provide a weak basis to depart from the original detention decision.  For the reasons stated, we affirm the circuit court’s judgment. ¶ 43 Affirmed.  

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People v. Carter, 2024 IL App (1st) 240259 (June).  Brian Carter stood accused of aggravated battery with a firearm and aggravated discharge of a firearm for allegedly shooting into a car traveling alongside him. The third element, whether any condition or combination of conditions can mitigate the real and present threat, was a “harder question” for the trial court. See id. § 110-6.1(e)(3). Carter posed “a good person” who found himself “now in a really bad situation.” The trial court stated: “[T]he types of conditions I can impose don’t stop this kind of thing from happening. If I put you on a curfew, if I put you on electronic monitoring, you still have the ability to drive around and do the things you need to do to live, as you should. *** If you’re out doing those things, the conditions I can impose would not stop something like this from happening again. There is really nothing I could do short of detaining you to make sure that this type of incident does not occur again. And what’s concerning to me is that it’s unprovoked.” ¶ 11 In a written order, the trial court added that the proffered facts “suggest[ed] a lack of impulse control” and “[t]he conditions this court could impose would not prevent an incident like this from occurring again.” In opposition, the State argues that neither home confinement nor electronic monitoring would protect the public from Carter’s alleged anger and impulsivity. We begin with section 110-5(a). It lists several factors a trial court must consider when “determining which conditions of pretrial release, if any, will reasonably ensure *** the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of pretrial release.” 725 ILCS 5/110-5(a) (West 2022).  Next, section 110-5(c) cross- – 5 – references section 110-10(a) and (b). Id. §§ 110-5(c), 110-10(a)-(b). Those sections particularize mandatory conditions of pretrial release (id. § 110-10(a)) and provide a nonexhaustive list of discretionary conditions, but only when they “include the least restrictive means and [are] individualized” (id. § 110-10(b)).  Nothing in the record indicates that the trial court considered the alleged offenses along with other evidence, such as Carter’s lack of criminal history and, until that point, lawful possession of a weapon. When weighing whether to order pretrial detention, the trial court must assess all of the evidence before it. Next, when ordering Carter’s pretrial detention, the trial court fixated on electronic monitoring and home detention, conditions appearing in a single subsection (725 ILCS 5/110- 5(b)(5) (West 2022)). This narrow focus disregarded the other enumerated conditions, for example, that Carter “[r]efrain from possessing a firearm or other dangerous weapon.” Id. § 110-10(b)(2). Section 110-10(b)(9) also broadly authorizes courts to impose “other reasonable conditions”— perhaps, a prohibition from driving while on pretrial prelease or confiscating his weapons and FOID card—if those conditions are individualized and the least restrictive means possible to ensure defendant’s appearance in court and compliance with pretrial release rules, court procedures, and criminal statutes. Id. § 110-10(b)(9). Thus, the trial court improperly applied its discretion under the Code. See People v. Williams, 188 Ill. 2d 365, 369 (1999) (“[A] trial court must exercise its discretion within the bounds of the law.”). The Code offers far more options. People v. Herrera, 2023 IL App (1st) 231801, ¶ 33-37 (remanding for new hearing where trial court failed to consider “full constellation of conditions at its disposal”). Before deciding that nothing short of pretrial detention will suffice, the trial court must consider other statutory conditions, which did not occur here. See People v. Horne, 2023 IL App (2d) 230382, ¶ 19 (unreasonable detention orders reversible as abuse of discretion and against manifest weight). Accordingly, we reverse. Reversed and remanded.