THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICKEY D. FORTHENBERRY, Defendant-Appellant.
NO. 5-23-1002
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
January 5, 2024
2024 IL App (5th) 231002
Appeal from the Circuit Court of Vermilion County. No. 23-CF-384. Honorable Charles C. Hall, Judge, presiding.
NOTICE Decision filed 01/05/24. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
OPINION
¶ 1 The defendant, Rickey D. Forthenberry, appeals the circuit court of Vermilion County‘s October 10, 2023, order regarding the defendant‘s pretrial release pursuant to Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act).1 See
I. BACKGROUND
¶ 2
¶ 3 On July 3, 2023, the defendant was charged by information with one count of aggravated discharge of a firearm (a Class 1 felony), two counts of aggravated unlawful use of a weapon (a Class 3 felony), two counts of unlawful possession of a weapon by a felon (a Class 3 felony), and one count of possession of a firearm while not eligible for a Firearm Owners Identification (FOID) card (a Class 3 felony). On the same date, the circuit court held the defendant‘s first appearance and set bond at $200,000, with 10% to apply and no additional conditions of release. On July 21, 2023, the grand jury returned a true bill of indictment as to all six counts. The defendant remained in pretrial detention.
¶ 4 On September 29, 2023, the defendant filed a motion to reconsider his conditions of pretrial release pursuant to
¶ 5 On October 10, 2023, the circuit court conducted a hearing on both the defendant‘s motion for reconsideration of pretrial release conditions and the State‘s petition to deny pretrial release. At the hearing, the State first noted the defendant‘s criminal history, which included three prior convictions for driving while license suspended, two Class A misdemeanor convictions in 2004 for domestic battery and resisting arrest, and a Class 4 felony conviction in 2010 for obstructing justice.
¶ 6 According to the State‘s proffer, on July 2, 2023, at approximately 1:30 a.m., officers heard gunshots and responded to the area of Kimball Street in Danville, Illinois. Officers received information that the shots may have occurred near or at 504 Kimball Street. As they were approaching, officers observed a black SUV leaving the area of the shooting and conducted a traffic stop on the vehicle. The defendant was driving the vehicle, and a passenger was located in the front passenger seat. Officers observed a black and silver .40-caliber Smith & Wesson semiautomatic pistol in the vehicle. The firearm was loaded with one round in the chamber. Officers also located a live .40-caliber round in the defendant‘s pocket. Further, officers observed multiple bullet holes in the defendant‘s vehicle. The defendant and the front seat passenger told officers that they were driving in the area of Kimball and Clarence Streets when someone shot at their vehicle. They then indicated that the defendant drove home, got a gun, returned to the scene, heard more gunshots,
¶ 7 In response, defense counsel proffered a short summary of the facts. The only additional information given was that officers received a report from an individual who lived on Kimball Street who reported that there was a big party going on next door, where her neighbors were firing guns. Defense counsel then argued that the traffic stop was conducted in violation of the fourth amendment and that any evidence obtained during the traffic stop was subject to suppression, leaving only the video, which did not show the vehicle‘s license plate. In addition, defense counsel argued that the defendant had an affirmative defense of self-defense to the offense of aggravated discharge because he did not fire until he was fired upon. Further, defense counsel argued that the defendant having fired a gun did not suggest a danger to persons or the community who were not using unlawful force against the defendant.
¶ 8 At the conclusion of the proceeding, the trial court ordered the defendant detained finding by clear and convincing evidence that (1) the proof was evident or the presumption great that the defendant had committed a qualifying offense; (2) defendant posed a real and present threat to the safety of any person or persons in the community, based upon the specific articulable facts of the case; and (3) no conditions could mitigate the real and present threat to safety. Specifically, the circuit court considered the nature and circumstances of the current offense, the seriousness of the offense, the weight of the evidence against the defendant, including the defense counsel‘s argument for suppression, and the defendant‘s prior criminal history. Further, the court was specifically concerned that the defendant returned to the area with a gun and “placed himself in a position where he had to return fire” and that the defendant was a convicted felon and cannot possess a gun. The trial court issued a written order of detention that day, providing the findings and reasons for its decision. In the order, the court made a handwritten notation that the hearing was held on the defendant‘s motion for reconsideration of pretrial release and the State‘s petition to deny pretrial release.
¶ 9 The defendant filed a timely notice of appeal on October 20, 2023. The Office of the State Appellate Defender (OSAD) was appointed to represent the defendant in this appeal and filed a memorandum in support of the Rule 604(h) appeal. The State did not file a response to the defendant‘s appeal.
II. ANALYSIS
¶ 10
¶ 11 In this appeal, the defendant used the approved standardized notice of appeal form for appeals brought under
¶ 12 OSAD filed a memorandum pursuant to
¶ 13 Specifically, the three issues in OSAD‘s memorandum argue (1) the trial court erred in concluding that the State had proved that the proof was evident or presumption great that the defendant committed a detainable offense, where the State‘s evidence may have been the result of an unlawful search or seizure; (2) in the alternative, the trial court‘s determination that no condition or combination of conditions could mitigate the real and present threat to safety was against the manifest weight of the evidence; and (3) in the alternative, the trial court erred in considering the State‘s petition to deny pretrial release, because it was untimely.
¶ 14 The State did not file a memorandum in response.
¶ 15 A. Timeliness of State‘s Petition to Deny Pretrial Release
¶ 16 We first begin our analysis by briefly addressing the matter of forfeiture as it relates to the timeliness issue raised in OSAD‘s third argument of its memorandum. On appeal, the defendant acknowledges that he did not object to or move to strike the State‘s verified petition in the trial court. The defendant concedes that typically this would result in forfeiture of the issue but asks us to overlook said forfeiture under the doctrine of plain error. However, “forfeiture is a limitation on the parties and not the reviewing court, and we may overlook forfeiture where necessary to obtain a just result or maintain a sound body of precedent.” People v. Holmes, 2016 IL App (1st) 132357, ¶ 65. Given that the proceedings in the case occurred shortly after the effective date of the Act and that the State has not argued for forfeiture, we will address the merits of this argument. We caution that our decision to overlook forfeiture is limited to this specific case, and we take no position on forfeiture in future cases.
¶ 17 The defendant‘s argument presents an issue of statutory construction. “The primary goal of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the intention of the legislature.” Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 48. The best indication of the legislative intent is the plain language of the statute. Id. “The statute should be evaluated as a whole, with each provision construed in connection with every other section. When the statutory language is clear, we must
¶ 18 Pretrial release is governed by
¶ 19
¶ 20 In Rios, the defendant was arrested and detained prior to the effective date of the Act, and the circuit court set bond, along with other conditions of pretrial release. Id. ¶ 3. The defendant, however, remained in pretrial detention. After the effective date of the Act, the State filed a petition to deny pretrial release. The circuit court granted the State‘s petition based upon its finding that the defendant should be detained according to the dangerousness standard, and the defendant appealed. Id. ¶¶ 5-6.
¶ 21 This court determined that the plain language of
“The State may file a petition to detain at the time of the defendant‘s first appearance before a judge; no prior notice to the defendant is required. Alternatively, the State may file a petition to detain the defendant within 21 calendar days after the arrest and release of the defendant; however, reasonable notice is to be provided to the defendant under this circumstance.” Rios, 2023 IL App (5th) 230724, ¶ 10.
¶ 22 This court found that the exceptions to the above timing requirements set forth in
“Under
sections 110-7.5(b) and110-5(e) , a defendant may file a motion seeking a hearing to have their pretrial conditions reviewed anew. Alternatively, a defendant may elect to stay in detention until such time as the previously set monetary security may be paid. A defendant may elect this option so that they may be released under the terms of the original bail.” Rios, 2023 IL App (5th) 230724, ¶ 16.
¶ 23 This court came to the above conclusion because, although the plain language of
¶ 24 In this case, like Rios, the defendant was arrested and had a cash bond set prior to the effective date of the Act—September 18, 2023. The defendant was unable to post bond, and he remained in pretrial detention. Unlike Rios, the defendant filed a motion to reconsider the conditions of pretrial release on September 29, 2023, pursuant to
¶ 25
¶ 26 Based upon the plain language of the Code, a defendant who was arrested prior to the implementation of the Act and who remains in detention after having been ordered released with conditions, including the posting of monetary security, has the option (a) to remain in detention until the previously set monetary security may be paid or (b) to file a motion to modify the previously set conditions of pretrial release under
¶ 27 Contrary to the defendant‘s argument, the State is permitted to file a responsive pleading in a situation such as this where a defendant was arrested and detained on a cash bond prior to the implementation of the Act and subsequently filed a motion seeking to modify the conditions of his pretrial release. Therefore, we reject the defendant‘s contention that the trial court erred when it considered the State‘s responsive petition.
¶ 28 B. Trial Court‘s Consideration of Evidence Potentially Subject to Suppression
¶ 29 Next, we turn to the defendant‘s first argument in his memorandum. The defendant argues that it was against the manifest weight of the evidence and an abuse of discretion for the trial court to conclude that the State had met its burden of proving by clear and convincing evidence that the proof was evident or presumption great that the defendant committed a detainable offense, where the State‘s evidence proffered at the hearing may have been the result of an unlawful search or seizure. Specifically, the defendant argues that the trial court “ignored” or improperly “deferred” consideration of the factor set forth under
¶ 30 As set forth above, a defendant‘s pretrial release may only be denied in certain statutorily limited circumstances. In order to detain a defendant, the State has the burden to prove by clear and convincing evidence that the proof is evident or the presumption great that the defendant has committed a qualifying offense, that the defendant‘s pretrial release poses a real and present threat to the safety of any person or the community or a flight risk, and that less restrictive conditions would not avoid a real and present threat to the safety of any person or the community and/or prevent the defendant‘s willful flight from prosecution.
¶ 31 In considering whether the defendant poses a real and present threat to the safety of any person or the community, i.e., making a determination of “dangerousness,” the trial court may consider evidence or testimony concerning factors that include, but are not limited to (1) the nature and circumstances of any offense charged, including whether the offense is a crime of violence involving a weapon or a sex offense; (2) the history and characteristics of the defendant; (3) the identity of any person to whom the defendant is believed to pose a threat and the nature of the threat; (4) any statements made by or attributed to the defendant, together with the circumstances surrounding the statements; (5) the age and physical condition of the defendant; (6) the age and physical condition of the victim or complaining witness; (7) whether the defendant is known to possess or have access to a weapon; (8) whether at the time of the current offense or any other offense, the defendant was on probation, parole, or supervised release
¶ 32 To set appropriate conditions of pretrial release, the circuit court must determine, by clear and convincing evidence, what pretrial release conditions, “if any, will reasonably ensure the appearance of a defendant as required or the safety of any other person or the community and the likelihood of compliance by the defendant with all the conditions of pretrial release.”
¶ 33 Our standard of review of pretrial release determinations is twofold. The circuit court‘s factual findings will be reviewed under the manifest weight of the evidence standard, such as the State‘s burden of presenting clear and convincing evidence that conditions of pretrial release would not protect any person or the community, that the defendant has a high likelihood of willful flight to avoid prosecution, or that the defendant failed to comply with previously ordered conditions of pretrial release. People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. “A finding is against the manifest weight of the evidence only if the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” People v. Deleon, 227 Ill. 2d 322, 332 (2008).
¶ 34 The circuit court‘s ultimate determination regarding the denial of pretrial release is reviewed for an abuse of discretion. Trottier, 2023 IL App (2d) 230317, ¶ 13. “An abuse of discretion occurs where the circuit court‘s decision is arbitrary, unreasonable, or fanciful or where no reasonable person would have taken the position adopted by the circuit court.” People v. Heineman, 2023 IL 127854, ¶ 59. ” ‘[I]n reviewing the circuit court‘s ruling for an abuse of discretion, we will not substitute our judgment for that of the circuit court, “merely because we would have balanced the appropriate factors differently.” ’ [People v. Simmons, 2019 IL App (1st) 191253, ¶ 15 (quoting People v. Cox, 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547 (1980))].” People v. Inman, 2023 IL App (4th) 230864, ¶ 11.
¶ 35
¶ 36 We have thoroughly reviewed the record on appeal in this matter. Here, the
“THE COURT: Well, a couple points. One, to the defense, you may well have a motion to suppress that should be given serious consideration, but I‘m not going to rule on a motion to suppress based on proffers today.
MR. BRAKKE: Just so my argument is clear, your Honor. I apologize for interrupting you. I‘m not asking for a motion to suppress today, but it is explicitly something that the Court—”
THE COURT: I can look at the admissibility as a factor in making my decision. I agree. I just wanted to clarify, you know, at the appropriate time if you feel that you should file a motion to suppress, then get it on the calendar and we will hear it with proper evidence and in accordance with the rules of evidence.”
¶ 37 The trial court made it a point to clarify on the record that
¶ 38 C. Alternative Arguments in Notice of Appeal
¶ 39 Lastly, we turn to the defendant‘s second and alternative argument in his memorandum. In section II of OSAD‘s memorandum there are no facts, argument, evidence, or any legal authority presented. Instead, there is a title paragraph, and in lieu of argument, OSAD states, “With respect to this claim, Mr. Forthenberry rests on the argument in the notice of appeal.”
¶ 40 In the defendant‘s standardized notice of appeal, the defendant checked the box indicating the State failed to meet its burden of proving by clear and convincing evidence that no condition or combination of conditions can mitigate the real and present threat to the safety of any person or persons or the community, based on the specific, articulable facts of the case. In the lines provided below, the defendant states,
“Please see above, as it establishes that if Defendant is dangerous, it‘s to people
who shoot [sic] at him on two different occasions for no reason. An order to stay away from the location of the shooting and to not possess any firearms or other dangerous weapons are conditions more than sufficient, given the specific facts of the case, to alleiate [sic] dangerousness, should some be found.”
While the defendant does make some level of argument in his notice of appeal, it also references a separate argument contained in the notice of appeal that is not set forth in the memorandum. In essence, we are first directed by the memorandum to the notice of appeal, and then we are redirected to another portion of the notice of appeal not argued in the memorandum.
¶ 41
¶ 42 As a matter of practicality and considering the long-standing principles of appellate procedure, we find that, if a memorandum is filed, it will be the controlling document for issues or claims on appeal and we will not reference the notice of appeal to seek out further arguments not raised in the memorandum, except in limited circumstances, e.g., to determine jurisdiction. The memorandum must contain some form of argument for each issue presented, along with justification for claiming entitlement to relief—like references to the record, evidence presented, or, if possible, legal authority. See
¶ 43 ”
¶ 44 In this case, the memorandum provides no argument in support and attempts to incorporate arguments in the notice of appeal into the memorandum by way of reference. Therefore, we find this argument forfeited.
III. CONCLUSION
¶ 45
¶ 46 For the reasons stated, we affirm the October 10, 2023, detention order of the circuit court of Vermilion County.
¶ 47 Affirmed.
People v. Forthenberry, 2024 IL App (5th) 231002
Decision Under Review: Appeal from the Circuit Court of Vermilion County, No. 23-CF-384; the Hon. Charles C. Hall, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Carolyn R. Klarquist, and Benjamin Wimmer, of State Appellate Defender‘s Office, of Chicago, for appellant.
Attorneys for Appellee: Patrick Delfino and David J. Robinson, of State‘s Attorneys Appellate Prosecutor‘s Office, of Springfield, for the People.