THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRYANT J. MANCILLA, Defendant-Appellant.
No. 2-23-0505
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
February 14, 2024
2024 IL App (2d) 230505
JUSTICE KENNEDY
Appeal from the Circuit Court of Kane County. No. 23-CF-2465. Honorable Salvatore LoPiccolo, Jr., Judge, Presiding.
Presiding Justice McLaren and Justice Jorgensen concurred in the judgment and opinion.
OPINION
¶ 1 Defendant, Bryant J. Mancilla, appeals from the circuit court‘s order granting the State‘s verified petition to deny him pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963 (Code), as amended by Public Act 101-652 (eff. Jan. 1, 2023), commonly known as the Pretrial Fairness Act (Act).1 See
¶ 2 The Office of the State Appellate Defender declined to file a memorandum pursuant to
¶ 3 I. BACKGROUND
¶ 4 On November 14, 2023, defendant was charged by complaint with 13 total counts of the following offenses: (1) armed robbery with a firearm, a Class X felony (
¶ 5 That same day, defendant initially appeared before the circuit court and the State filed its verified petition to deny defendant‘s pretrial release. Along with its verified petition, the State also filed its exhibit 1, a 12-page “Police Department Synopsis,” which provided as follows.
¶ 6 On November 11, 2023, at approximately 9:17 a.m., Elgin police officers were dispatched to 383 Division Street following a report of a shooting, which was later reclassified as an armed robbery. Dispatch advised that a male suspect, armed with a gun, drove away in one of the victim‘s vehicles. Once the police officers arrived at the scene, they found two male victims who stated that they had been physically struck with a firearm by an unknown suspect who fled the scene. The two victims were transported to the hospital by paramedics for treatment. One of the victims was bleeding from his head.
¶ 7 Police officers traced the cell phone of one of the victims, who had left the phone inside the vehicle defendant allegedly stole. The officers traced the cell phone ping to another location in Elgin but were unable to locate the vehicle and the suspect.
¶ 8 Thereafter, an Elgin police detective interviewed one of the victims, Francisco Rodriguez, at the hospital. Francisco had left his home on the morning of November 11 to pick up his brother, Julio, whose truck had broken down in another city. Francisco and Julio had stopped at 383 Division Street to pick up a trailer that was inside the garage. When Francisco drove into the driveway at that location, he noticed defendant sitting across the street. Francisco pulled into the driveway, left the vehicle while it was still running, and entered the garage. Shortly thereafter, Francisco saw defendant walking towards him and he thought defendant was going to ask for money. Defendant instead asked Francisco and Julio about their employer. Francisco told defendant that they were not working for anyone, at which point, defendant started to hit Julio‘s head with a gun. Francisco observed defendant hit Julio on the head twice with the gun. He told
¶ 9 Francisco did not know who defendant was and stated that he did not have a problem with anyone. He described the suspect‘s appearance and the weapon to the detective. He also told the detective that he would be able to identify the suspect in a photo lineup.
¶ 10 Police officers also spoke with Marie Rodriguez, Francisco‘s wife and the owner of the vehicle defendant allegedly stole. Marie stated that she would sign complaints against the offender.
¶ 11 Next, police officers interviewed Julio Rodriguez at the hospital emergency room. After Julio and Francisco arrived at 383 Division Street, Julio saw a male subject sitting across the street and smoking a cigarette. After Julio and Francisco pulled into the driveway of the home, they exited the vehicle and entered the garage. At that point, Julio saw the man from across the street walking towards them. When the man entered the garage, he stated, “Hi how are you?” The offender then pulled out a handgun with his left hand and told them to put their money on the ground. Defendant stated that he was going to kill them. Julio agreed to give the suspect his money, at which point defendant asked them why they wanted to kill someone. Julio did not remember the name of the person defendant referenced. Julio then lay on the ground and at that point, he felt a strike to his head. Julio remained on the ground and did not stand up because he was afraid that defendant would shoot him. While he stayed on the ground, he heard defendant hit Francisco. He also heard defendant kick Francisco multiple times, followed by silence. Francisco asked Julio for
¶ 12 Later in the afternoon of November 11, police officers canvassed the area of 383 Division Street for evidence and located a cigarette, but Marie stated that it was hers. Police then located the victims’ vehicle parked in front of 425 Park Street in Elgin. The keys to the vehicle remained in the ignition. Police towed the vehicle for processing and collecting evidence. Police also recovered a video recording from 389 Division Street and uploaded the file. The video showed that at 9:07 a.m. on November 11, 2023, “the suspect” sat on a cement wall on Division Street, directly across the street from 383 Division Street. He appeared to be smoking a cigarette with his right hand. At 9:08 a.m., the victims’ vehicle pulled into the driveway at 383 Division Street. At 9:11 a.m., the suspect walked toward 383 Division Street, holding a cigarette in his hand as he approached the driveway. He then reached for a firearm from his front waistband and entered the garage at 9:12 a.m. Then at 9:15 a.m., he ran out of the garage and entered the driver‘s seat of the victims’ vehicle, reversed out of the driveway, and drove away.
¶ 13 On November 12, 2023, police officers returned to 383 Division Street and recovered another cigarette butt in the driveway, which did not match Marie‘s cigarettes. Police officers also recovered video from cameras mounted outside of 425 Park Street. In addition, police recovered video from a homeowner residing at 416 Park Street, which captured the suspect running away from the scene. Additional video footage from Park Street cameras showed that a male subject matching the suspect‘s description exited the front driver‘s seat of the victims’ vehicle. The suspect had dropped an item, black in color, in the roadway when crossing the street. Police described the item as resembling a gun magazine. The suspect picked up the item and continued walking across
¶ 14 After viewing the videos, police canvassed the area of Park Street, including prior contacts and calls for service at 388 and 398 Park Street. Police officers located a recent dispatch for service at 388 Park Street involving defendant. The notes for that call stated that defendant has schizophrenia and had been refusing to take his medicine. The officers searched defendant‘s booking jacket and observed that he had multiple arrests and that he is associated with the “Brown Pride” gang. The officers also noted that defendant‘s booking photographs closely resembled the suspect seen on the video at 389 Division Street.
¶ 15 One of the officers printed a photograph from defendant‘s file and contacted defendant‘s mother, who had recently called Elgin police for assistance with defendant. Defendant‘s mother agreed to speak to Elgin police officers and told them he has a mental disability that requires medication. He had been diagnosed with schizophrenia, bipolar disorder, and diabetes. She also told the officers that he takes drugs, including cocaine. Further, she told police that defendant no longer resides with her; rather, he lives with his father at 388 Park Street. When the officers showed defendant‘s mother a still image from the video recovered from 389 Division Street, she positively identified defendant as the suspect.
¶ 16 On November 13, 2023, Detective Joniak of the Elgin police department prepared a photo lineup for Francisco. Detective Ziegler administered the photo lineup and Francisco positively identified defendant as the suspect.
¶ 17 On the same date, Elgin police officers spoke to defendant‘s father at his residence, 388 Park Street, who told them that defendant resides in the basement. Defendant‘s father stated that
¶ 18 Police officers interviewed defendant, who waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). He initially told the officers that he was not involved in this incident and did not own any firearms. After showing defendant a photograph of the handgun that the officers recovered, he told the officers that he bought the firearm for protection. Defendant stated that he went to 383 Division Street to protect himself and that he “approached [two] fat guys and asked them why they wanted to kill him and his dad.” Defendant stated that he got mad, raised the gun toward both of them, and began to strike both of them with the gun. Defendant stated that he grabbed a wallet from one of the victims, opened it up, and threw it on the ground. Defendant stated that he then ran away and entered a silver vehicle. Defendant told the officers that he did not know what kind of vehicle he entered and stated only that it was very dirty inside. Defendant drove the vehicle around the corner and went home afterwards.
¶ 19 Also on November 14, 2023, the circuit court heard the State‘s petition and denied defendant‘s pretrial release. The court had read the police department‘s synopsis, considered the history and characteristics of defendant, including his prior criminal history indicative of violent, abusive, or assaultive behavior, and found sufficient evidence to detain him. The court stated that, along with the synopsis, it considered evidence of defendant‘s psychological, psychiatric, or similar social history, which tended to indicate a violent, abusive, or assaultive history, and also considered the direct threat to the safety of the victims, Francisco and Julio, as well as the threat
¶ 20 II. ANALYSIS
¶ 21 Defendant filed his notice of appeal the same day, on November 14, 2023. In his standard form notice of appeal, defendant‘s public defender checked five boxes, only two of which contained any elaboration identifying a basis for the checked claim of error. The first argues that the State failed to meet its burden of proving by clear and convincing evidence that the proof was evident or the presumption great that he committed the offenses charged because the circuit court
¶ 22 Pretrial release is governed by article 110 of the Act.
¶ 23 To deny a defendant pretrial release, the circuit court must find that the State proved the following by clear and convincing evidence: (1) the proof was evident or the presumption great that defendant committed a detainable offense (
¶ 24 We reject defendant‘s argument that a police synopsis is per se insufficient to demonstrate that the proof was evident or the presumption great that defendant committed the charged offenses. At a pretrial detention hearing, the State is explicitly permitted to present evidence “by way of proffer based upon reliable information.”
¶ 25 Even if we were to consider defendant‘s claim of error as an argument that the proffered police synopsis did not contain sufficient evidence that he committed the charged offense, the synopsis is replete with evidence that defendant committed the nonprobationable charged offenses of armed habitual criminal (
¶ 26 Second, as to defendant‘s “dangerousness,” defendant‘s notice of appeal argues only that one of the
¶ 27 Defendant‘s specific assertion, however, that “[t]he Court erred in finding the Defendant‘s mental health condition as indicated in [the police synopsis] was indicative of his violence [sic], abusive, or assertive [sic] nature” is also wholly without merit. The Act explicitly allows consideration of the “history and characteristics of the defendant including *** [a]ny evidence of the defendant‘s psychological, psychiatric or other similar social history which tends to indicate a violent, abusive, or assaultive nature, or lack of any such history.”
¶ 28 Defendant‘s remaining claims of error are simply checked boxes on the standard form generally concerning a circuit court‘s findings that no condition or combination of conditions of pretrial release can mitigate the threat posed or ensure appearance, as well as “[d]efendant was denied an opportunity for a fair hearing prior to the entry of the order denying or revoking pretrial release.” These bare assertions are devoid of arguments or facts in the notice of appeal, there is no
¶ 29 Nonetheless, the evidence clearly supported the circuit court‘s determination that no set of release conditions could mitigate the threat defendant posed to the two victims and the community. Although defendant stated in his notice of appeal that the court erred when it found his mental health condition was indicative of violent, abusive, or assertive conduct, it was his criminal history, particularly prior felonies involving firearms, that demonstrated his dangerousness and history of noncompliance and disregard for conditions or restrictions. The specific, articulable facts of this case all weigh heavily in favor of the circuit court‘s determination that no condition or combination of conditions could mitigate the real and present threat defendant posed. Moreover, the fact that defendant resides in close proximity to the victims further bolsters this conclusion. Accordingly,
¶ 30 As for the remaining claims in the notice of appeal, there are no arguments presented and we can discern no arguable basis from the record for any of them. “[I]t is neither the function nor the obligation of this court to act as an advocate or search the record for error [citation].” Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993). ” ‘A reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.’ ” In re Marriage of Baumgartner, 237 Ill. 2d 468, 474-75 (2010) (quoting Pecora v. Szabo, 109 Ill. App. 3d 824, 825-26 (1982)). Therefore, these claims are forfeited.
¶ 31 Having spent more time and effort exploring defendant‘s claims and potential claims than defendant‘s attorneys have, we now address the ethical duties of defense counsel in appeals made under the Act. We begin by noting that every attorney in every case must comply with Rule 3.1 of the Rules of Professional Conduct, which states:
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
Ill. R. Prof’l Conduct (2010) R. 3.1 (eff. Jan. 1, 2010).
Since appeals under the Act are criminal in nature, we cannot consider whether frivolousness or sanctions apply under
¶ 32 We are mindful that both trial and appellate counsel are representing defendant in a criminal proceeding that could result in incarceration and that counsel have a duty to zealously defend clients in any proceeding under the Act, which includes the duty to defend against any and all assertions listed in the State‘s petition to detain, not only in the detention hearing but thereafter on appeal. To be sure, a defendant is “entitled to appeal any order entered under [the Act] denying his or her pretrial release.”
¶ 33 Here, as in many cases before this court since the Act became effective on September 18, 2023, a public defender (or sometimes a pro se defendant) has checked boxes on the standard notice of appeal form, without adding, elaborating or specifying any grounds to support one or more checked claims, and appellate counsel for the defense has chosen to simply stand on the notice of appeal without filing a brief or memorandum in support of it, thus continuing pursuit of
¶ 34 We hold that in appeals of detention orders under the Act, appellate attorneys appointed to represent the defendant under the Act are required to determine whether a defendant‘s claims have arguable merit and, if, in their opinion, they do not, counsel cannot in good faith file or continue to pursue such a frivolous appeal or claim within an appeal.
¶ 35 We are not requiring that the procedure utilized in Anders cases be followed in
¶ 36 For the foregoing reasons, the circuit court did not err in denying defendant‘s pretrial release, and we affirm the judgment of the circuit court of Kane County.
¶ 37 Affirmed.