THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS A. GATHING, Defendant-Appellant.
No. 3-23-0491
Appellate Court of Illinois, Third District
December 28, 2023
2023 IL App (3d) 230491
JUSTICE DAVENPORT delivered the judgment of the court, with opinion. Justices Brennan and Peterson concurred in the judgment and opinion.
Appeal from the Circuit Court of Kankakee County, No. 22-CF-446; the Hon. William S. Dickenson, Judge, presiding. Judgment vacated; cause remanded.
Patrick Delfino and David J. Robinson, of State’s Attorneys Appellate Prosecutor’s Office, of Springfield, for the People.
¶ 1 Defendant, Marcus A. Gathing, appeals from the circuit court’s order granting the State’s verified petition to revoke pretrial release under
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with five felony drug counts in July 2022. Bond was originally set at $750,000 but was later reduced to $200,000. In December 2022, defendant posted bond and was released. On September 22, 2023, the State filed a verified petition to revoke pretrial release under
¶ 4 A hearing was held on the petition on Oсtober 5, 2023. Defendant was in custody and appeared via a two-way audio-video communication system. Defense counsel appeared in court. It was counsel’s first appearance. The court asked counsel if he wanted a continuance “to get [his] feet on the ground.” Counsel said he was ready to proceed on the petition. The State told the court a grand jury had indicted defendant, in case No. 23-CF-128, on two new felonies (one of which was later dismissed) while he was on pretrial release on the July 2022 offenses. Defendant was also on conditional discharge for a prior felony and on pretrial release in a Will County felony matter when he committed the July 2022 offenses and the new offenses. The State argued there were no conditions that would prevent defendant from committing further offenses. Defendant asked if he could speak on his own behalf, but the court stated he had an attorney to speak for him.
¶ 5 The court granted the State’s petition, finding the State met its burden by clear and convincing evidence and there were no conditions to prevent defendant from being charged with a subsequent offense. In doing so, it noted defendant’s history of being released and continuing to be charged with new felony offenses.
¶ 6 After the court announced its ruling and read defendant his appeal rights, defendant told the court, “I would like to file an appeal today ***. And I—I don’t understand why I wasn’t able to talk or why I wasn’t in court.” Later, defendant told the court, “I was under the impression that I had the right to be рresent and be heard on my own behalf” and “they were supposed to have me in court for a hearing on this.”
¶ 7 Defendant filed a notice of appeal on October 10, 2023. The notice of appeal was not prepared on the form аpproved by our supreme court for appeals by defendants under
¶ 8 II. ANALYSIS
¶ 9 On appeal, defendant contends the court erred in granting the petition to revoke. Specifically, he contends (1) his statutory right to be physically present for the hearing was violated, (2) defense counsel had no knowledge оf the facts and circumstances surrounding the case, and (3) the State did not prove there were no conditions available to mitigate defendant’s risk.
¶ 10 A. Right to In-Person Hearing
¶ 11 Defendant first contends he is entitled to a new hearing because he was denied his statutory right to be physically present at the hearing on the State’s petition. This contention presents a question of law, in that it requires us to construe and determine whether the court complied with the Code. Accordingly, our review is de novo. People v. Kurzeja, 2023 IL App (3d) 230434, ¶ 10. In construing the Code, we are bound by its text, which we must give its plain and ordinary meaning. Id.
¶ 12 Before addressing this issue, we note the State observes that defendant’s notice of appeal was not prepared on the form approved by our supreme court for Rule 604(h) appeals taken by defеndants and does not describe the relief requested or the grounds for that relief. Thus, the State continues, the notice of appeal does not comply with
¶ 13 The failure to comply with Rule 604(h)(2)’s requirement that the notice of appeal describe the relief requested and the grounds for that relief is not jurisdictional. People v. Presley, 2023 IL App (5th) 230970, ¶ 25; see People v. Lewis, 234 Ill. 2d 32, 37 (2009) (no step, other than timely filing a notice of appeal, is jurisdictional). Rathеr, it raises a question of forfeiture. It is well settled that forfeiture is a limitation on the parties, not the reviewing court. See, e.g., Kurzeja, 2023 IL App (3d) 230434, ¶ 9. We may overlook the principles of forfeiture when “necessary to obtain a just result or maintain a sound body of preсedent.” (Internal quotation marks omitted.) Id.
¶ 14 Here, defendant raised the issue himself in the circuit court, giving his counsel, the State, and the circuit court the opportunity to correct the error before appeal and alerting the State that this was a possible basis for appeal. See People v. Jackson, 2022 IL 127256, ¶ 15 (the principles of forfeiture are designed to preserve judicial resources, by allowing errors to be corrected before appeal and preventing a defendant from allowing an irregular proceeding to go forward only to seek reversal due to the error when he receives an unfavorable outcome). Additionally, defendant filed a memorandum in this court, in part arguing he did not waive his statutory right to an in-person hearing on the Statе’s petition.2 Cf. Inman, 2023 IL App (4th) 230864, ¶¶ 12-13 (finding the defendant’s failure to provide argument in his notice of appeal or in a memorandum left the court in the position of developing an argument on the defendant’s behalf). Moreover, the hearing at issue took place on October 5, 2023, within the first 20 days of the effective date of the Act’s amendments to the Code, which implemented wholesale changes to the law governing pretrial release. Under these circumstances, we choose to overlook the forfеiture that resulted from defendant’s failure to describe the grounds for relief in his notice of appeal.
¶ 15 We also note the State maintains it did not receive defendant’s memorandum until December 12, 2023, after its own memorandum was due. The supporting record in this case was filed on November 2, 2023, meaning defendant’s memorandum would have been due on November 23, 2023.
¶ 16 Section 110-6(a) of the Code reads in part as follows:
“A hearing at which pretrial release may be revoked must be conducted in person (and not by way of two-way audio-visuаl communication) 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. Such operational challenges must be documented and approved by the chief judge of the circuit, and a plan to address the challenges through reasonable effоrts must be presented and approved by the Administrative Office of the Illinois Courts every 6 months.” (Emphases added.)
725 ILCS 5/110-6(a) (West 2022) .
The plain text of section 110-6 gives the accused the right to be physically present at a hearing at which pretrial release might be revoked. Indeed, the Code requires an in-person hearing on such matters, subject to three exceptions: when (1) the accused waives his or her right to be physically present, (2) the court determines that an in-person hearing would endanger the physical health and sаfety of any necessary participant, or (3) the chief judge of the circuit orders the use of a two-way audio-video communication system due to operational challenges.
¶ 17 The record before us does not establish any of the three exceptions to section 110-6’s in-person hearing requirement. The record does not show defendant waived his right to be
¶ 18 Further, the circuit court did not make a finding that an in-person hearing would endanger the physical health and safety of any necessary participant. See
¶ 19 Simply put, defendant had a right, under
¶ 20 B. Reassignment on Remand
¶ 21 As a final matter, defendant requests that we reassign the matter to a different judge upon remand. He asserts reassignment “would promote both actual fairness and the аppearance of fairness in further proceedings in this matter.”
¶ 22 Under
¶ 23 Based on our review of the record, we have no reason to doubt the judge will properly apply the relevant provisions of the Code on remand, and we do not believе there is “any suggestion of unfairness” to be removed. Accordingly, we decline to order the matter reassigned to a different judge on remand.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we vacate the judgment of the circuit court of Kankakee County and remand for а new hearing on the State’s verified petition to revoke pretrial release, at which defendant must be physically present unless one of the exceptions contained in
¶ 26 Judgment vacated; cause remanded.