THE PEOPLE OF THE STATE OF ILLINOIS v. JOSHUA A. PRESLEY
NOS. 5-23-0970, 5-23-0971, 5-23-0972, 5-23-0974 cons.
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
December 21, 2023
2023 IL App (5th) 230970
Appeal from the Circuit Court of Moultrie County. Nos. 23-CF-28, 23-CF-40, 23-CM-7, 23-DV-7. NOTICE: Decision filed 12/21/23. 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.
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court, with opinion.
Justice Welch concurred in the judgment and opinion.
Justice McHaney dissented, with opinion.
OPINION
¶ 1 Defendant, Joshua A. Presley, appeals the October 12, 2023, order of the circuit court of Moultrie County that granted the State‘s petition to deny pretrial release and ordered him detained 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 Pub. Acts 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). For the following reasons, we affirm the order of detainment.
I. BACKGROUND
¶ 2 ¶ 3 On April 10, 2023, defendant was issued a notice to appear in court on May 1, 2023. The notice was related to an uncharged claim of endangering the life or health of a child in violation of
¶ 4 In the interim, on May 19, 2023, in Moultrie County case No. 23-DV-7, defendant was charged, by information, with domestic battery after making physical contact of an insulting or provoking nature with B.L. on or about July 2022, in that defendant struck the minor child on the back of the head and pushed B.L.‘s head into a corner, in violation of
¶ 5 On June 1, 2023, in Moultrie County case No. 23-CF-28, defendant was charged by information with one count of home invasion pursuant to
¶ 6 On June 30, 2023, in Moultrie County case No. 23-CF-40, defendant was charged, by information, with criminal damage to government supported property when he damaged a window at the Moultrie County Detention Center and Sheriff‘s Office on June 14, 2023, in violation of
¶ 7 The psychiatric evaluation report was filed with the court on July 10, 2023. On July 26, 2023, defense counsel, who was the same in all four of defendant‘s Moultrie County cases, filed a motion to reduce defendant‘s bond in the home invasion case. A pretrial bond report was filed on August 1, 2023. On August 4, 2023, defense counsel filed a motion to modify bail conditions in defendant‘s domestic violence case. The motions were heard on August 7, 2023, and after hearing argument, the trial court denied the motion in the home invasion case but modified the bond conditions in the domestic violence case to allow defendant to have telephonic or electronic communication with L.P. In-person contact was denied.
¶ 8 On September 15, 2023, the State filed a verified petition seeking denial of defendant‘s pretrial release. The petition‘s caption included all four cases (Nos. 23-CF-28, 23-CF-40, 23-CM-7, and 23-DV-7) pending against defendant. The petition alleged defendant was charged with domestic battery or aggravated domestic battery and that defendant‘s pretrial release posed a real and present threat to the safety of any person or persons or the community. The petition further alleged defendant had a high likelihood of willful flight to avoid prosecution and was charged with a felony described in
¶ 9 On September 18, 2023, the State filed an amended verified petition again listing all four cases in the caption. The petition contained the same allegations as the initial petition but included an additional allegation that defendant was charged with a forcible felony as listed in
¶ 10 The State‘s petition to deny defendant pretrial release was heard on October 12, 2023. The State called Andrew Askins, who testified that on May 30, 2023, he was at Ryan Collins‘s house with Jason Stiner, where they play darts. There was a knock on the door, and defendant walked in uninvited. He had gloves on and was asking for Ryan. Ryan was at work, so they asked defendant to leave, and he did. Andrew and Jason were also at Ryan‘s house on May 31, 2023. Ryan was at work. There was a knock at the door, and Andrew told Jason, “Don‘t answer it. It‘s not our house.” Jason heard somebody mumble so he opened the door, but before the door was even cracked open there was a gun pointed at Jason‘s head, and defendant was pushing himself into the home. The gun was the first thing in the door. Defendant told Jason to “back the f*** up,” and when defendant went to close the door, he lifted the mask. Jason tilted the gun up in the air and pushed defendant back. Andrew jumped in to try to get the gun away from defendant. Defendant was not letting go, so Andrew stuck his finger in defendant‘s eye because defendant stated, “One of you guys is going to have to die,” seconds before the shot was fired. Jason called the police, and defendant stood up, fell, broke Ryan‘s door, stumbled onto the porch, and was gone. They got the gun away from defendant while Jason was on the phone and Andrew was trying to contain defendant so he could be arrested.
¶ 11 The State then called Jason Stiner, but the court denied the State‘s request to call other witnesses, advising the State could make a proffer. The State indicated that Jason would testify about the events from both nights and that he was the one who opened the door the second night. He saw the gun first, and it was pressed against his forehead. He heard defendant state that “one of you is going to have to die” during the struggle for the gun. Jason called the police.
¶ 12 The State indicated that Deputy Hayes would testify that he was the officer who initially responded to the 911 call. He would testify that Jason‘s statement in court was similar to that provided after the incident. The State further proffered that Deputy Hayes would testify that he was working for the Sullivan Police Department
¶ 13 The State further indicated it would also call Officer John Smith from the Moultrie County Sheriff‘s Office, who would testify to two reports dated June 27, 2023, and September 18, 2023. The June 27, 2023, report indicated that, while Officer Smith was on duty, he determined that defendant was attempting to chisel his way out of the jail cell. The September 18, 2023, report revealed that Officer Smith overhead defendant tell his girlfriend that he planned to request a medical release related to his eye problems. Officer Smith noted that medical care was provided to defendant in the jail and defendant exhibited no signs of any need for medical treatment. Officer Smith would also testify about his conversation with a nurse at the Moultrie County jail. The nurse would testify about defendant‘s medical condition. The State offered the three exhibits attached to its petition. It also tendered a report from the Moultrie County Sheriff‘s Office authored by Officer Sentel regarding criminal damage to property associated with case No. 23-CF-40. The State would also tender a report authored by Deputy Bryce Farris related to resisting a peace officer and aggravated battery claims that had not yet been charged but occurred while defendant was in custody.
¶ 14 Defense counsel tendered the July 7, 2023, report from Dr. Boyd regarding defendant‘s fitness to stand trial and a July 20, 2023, report, which was a psychological evaluation for criminal responsibility. Counsel then called Stephanie Grenias. Stephanie lived with defendant‘s father for 16 years, looked into alternative treatment for defendant, and was pursuing a 90-day residential treatment facility for defendant to address his substance abuse and mental illness. She stated the facility could accommodate an ankle monitor. She confirmed that, once a person was admitted, that person could not leave. She stated the facility had not yet secured a bed for defendant but would do so if the court allowed it. The facility would not provide her with a bed until it knew with certainty defendant was able to take the available bed. Defendant would stay at the jail until the bed was available, and she would transport defendant to the facility. Stephanie and defendant‘s father would pay for the ankle monitor. Both Stephanie and defendant‘s father were recovering addicts and alcoholics and had vast experience in this area. They had both been clean for 16 years and worked regularly with people in recovery. She also testified that she wrote a letter to the court. Defense counsel tendered the letter written by Stephanie and information related to an ankle alcohol monitoring bracelet. On cross-examination, Stephanie admitted that being in jail kept defendant from alcohol and that he had methamphetamine in his system when he was hospitalized. Defense counsel also proffered that defendant indicated interest in the program and wanted to get treatment.
¶ 15 Following the presentation of evidence, the State argued that defendant was charged with a forcible felony involving the threat of or infliction of great bodily harm and that his release posed a real and present threat to the safety of persons in the community as evidenced by the home invasion and domestic violence
¶ 16 In response, defense counsel stated that they were not asking for defendant to be “set free to walk the streets.” They were requesting release into a residential treatment facility that would restrict his freedom. Defense counsel conceded defendant had an alcohol problem but argued that, if defendant was in the facility, he would not be a risk to society in general and would be receiving treatment. Counsel further argued that most of the allegations related to defendant occurred when he was taken into custody and suffering withdrawal. Counsel argued that defendant was now an entirely different person and would not be a risk to anyone while he was in the residential facility. Counsel stated the statute should 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 others, and that the person will not attempt or obstruct the criminal justice process. The facility accomplished all those goals.
¶ 17 Following argument, the trial court found the presumption great that defendant committed a detainable offense and that no condition or combination of conditions could mitigate the real and present threat. The court further found that defendant had a high likelihood of willful flight to avoid prosecution. The court stated:
“Quite frankly, I don‘t think this case is even close. When we look to the willful-flight standard, Defendant was uncooperative with his arrest on the warrant. He tried to dig out of his cell at the county jail. He broke a window. He asked his girlfriend to research locations that will not extradite. I think the evidence is clear and convincing that the willful-flight standard has been met in this case.
Furthermore, Defendant *** is a threat to identifiable people, Mr. Askins that testified today and also Mr. Stiner that was in the residence. He entered that residence with a firearm. That firearm was discharged. There was a struggle, and all that happened, but he also made death threats that someone was going to die that date. You couple that with the Defendant not obeying the Court‘s orders in the past, committing
this new offense in violation of court orders. This is a Defendant that has demonstrated by a very specific behavior to very specific person that he is a threat, and the Court would agree with the State that the only difference here is that Defendant has been incarcerated. So, for the protection of the victims in this case and for the public generally, the Defendant will be detained in this case.”
Thereafter, the court advised defendant of his appeal rights, and a written order listing case Nos. 23-CF-28, 23-CF-40, 23-DV-7, and 23-CM-7 was filed. The order addressed the home invasion charge and contained the court‘s oral findings related to willful flight provided at the hearing and further written findings of dangerousness, noting defendant “not only entered [the] residence with a firearm and it was discharged, but he also made death threats to the occupants.”
¶ 18 On October 17, 2023, defendant filed a notice of appeal in each case from the court‘s October 12, 2023, ruling on the State‘s petition to deny defendant pretrial release. The notices were all the same and provided the names and addresses for notices, a request for appointment of counsel on appeal, and listed the offense as “21-TR-60 Driving While License Revoked All other cases are pending.” The notice of appeal‘s caption listed the following case numbers: 21-TR-60, 23-CM-7, 23-CF-28, 23-CF-43, and 23-DV-7. On October 20, 2023, counsel filed four amended notices of appeal with the same information and case numbers.
¶ 19 On November 6, 2023, the Office of the State Appellate Defender (OSAD) entered its appearance on behalf of defendant in all four cases. The same day, the State moved for dismissal of defendant‘s appeals because his notices of appeal failed to comply with
¶ 20 On November 16, 2023, OSAD filed four separate memoranda in support of defendant‘s Rule 604(h) appeals. The memoranda initially addressed the State‘s motion to dismiss and classified the pleading as “too cursory to entertain and directly contrary to precedent on notices of appeal.” The memoranda further argued that the State‘s motion failed to cite “a single case on appellate jurisdiction” and therefore forfeited the issue. The memoranda also contended the notice submitted was sufficient to apprise the State of the nature of the proceedings and the “relief sought is obvious: vacatur of the detention order and remand for further proceedings.”
¶ 21 Moving to the merits of the appeal, defendant argued that this court should vacate the detention order because the Act did not authorize the trial court to consider the State‘s petition for detention. After providing argument as to why the court could not consider the State‘s petition, defendant conceded that his trial counsel did not address this issue while the case was before the trial court and did not include the issue in the notice of appeal. The memorandum requested we review the issue as “plain error,” citing People v. Vingara, 2023 IL App (5th) 230698, ¶ 23, and stating that
¶ 22 On November 22, 2023, the State filed four separate motions to strike defendant‘s memoranda. The motions addressed the State‘s pending motion to dismiss as well as the defendant‘s memoranda that only presented new arguments on appeal that were not related to anything in defendant‘s notice of appeal. The State‘s motions contended that defendant‘s memoranda were “a thinly veiled attempt to argue issues completely barred by the plain language permitting appeals under Rule 604(h) as it raises grounds unrelated to the notice of appeal in this case.” We consolidated the appeals and will address the pending motions with the case.
II. ANALYSIS
¶ 23 ¶ 24 We first address the State‘s motion to dismiss this case for a lack of jurisdiction based on the lack of information contained in the notice of appeal. We note that, even if the issue were not raised, this court “has an independent duty to consider issues of jurisdiction.” People v. Smith, 228 Ill. 2d 95, 104 (2008).
¶ 25 Here, while defendant‘s notice of appeal failed to contain any request for relief or grounds for the relief requested, the notice of appeal clearly identified the trial court‘s October 12, 2023, order granting the State‘s petition for detention as the basis of the appeal. Such order is one in which
¶ 26 We do not afford any credence to the State‘s contention that defendant‘s notice failed to apprise it of the issues on appeal. A notice of appeal is generally construed liberally. Smith, 228 Ill. 2d at 104. “The purpose of a notice of appeal is to inform the prevailing party in the trial court that the other party seeks review of the judgment.” Id. “[N]otice should be considered as a whole and will be deemed sufficient to confer jurisdiction on an appellate court when it fairly and adequately sets out the judgment complained of and the relief sought, thus advising the successful litigant of the nature of the appeal.” Id. at 105 (quoting Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d 226, 229 (1991)). While defendant‘s notice of appeal lacked specificity, it was clear that the
¶ 27 Turning to the merits, defendant argues that the trial court did not have authority to issue a ruling on the State‘s petition to deny release because the State‘s petition was untimely. This court has previously issued rulings agreeing that timeliness of the State‘s petition is required. See People v. Rios, 2023 IL App (5th) 230724, ¶ 12; People v. Mosley, 2023 IL App (5th) 230823-U, ¶ 16; Vingara, 2023 IL App (5th) 230698, ¶ 18. Here, as in Mosley and Vingara, defendant concedes that the argument presented on appeal is not one that was presented to the trial court and requests second-prong plain-error review. While both Mosley and Vingara allowed for plain-error review, we believe further consideration of the issue is warranted, as no analysis of the issue was provided.
¶ 28 “It is fundamental to our adversarial system that counsel object at trial to errors.” People v. Carlson, 79 Ill. 2d 564, 576 (1980) (citing People v. Roberts, 75 Ill. 2d 1, 10 (1979)). Courts have generally held that the failure to object forfeits the right to consider the question on appeal. Id. A criminal defendant who fails to object to an error has forfeited the error, precluding review of the error on appeal. People v. Herron, 215 Ill. 2d 167, 175 (2005). The rationale behind this result is “because failure to raise the issue at trial deprives the circuit court of an opportunity to correct the error, thereby wasting time and judicial resources.” People v. Jackson, 2022 IL 127256, ¶ 15 (citing People v. McLaurin, 235 Ill. 2d 478, 488 (2009)). “This forfeiture rule also prevents criminal defendants from sitting idly by and knowingly allowing an irregular proceeding to go forward only to seek reversal due to the error when the outcome of the proceeding is not favorable.” Id.
¶ 29 Forfeiture, however, is not absolute, and
¶ 30 However, “[t]he plain error rule does not call for the review of all forfeited errors.” Jackson, 2022 IL 127256, ¶ 19. The “plain error rule is a narrow exception to forfeiture principles.”
¶ 31 Here, defendant requested plain-error review under the second prong. In support, defendant argued that the Act does not allow the State to file a petition to deny release unless the petition is filed at the defendant‘s first appearance or shortly thereafter upon their arrest and release, citing
that a “‘misapplication of the law’ that affects a defendant‘s ‘fundamental right to liberty,’ constitutes plain error as it affects the integrity of the judicial system.”
¶ 32 Although not addressed by defendant, “[t]he first analytical step under the plain error rule is to determine whether there was a clear or obvious error.” People v. Moon, 2022 IL 125959, ¶ 22. “[T]he term ‘plain’ as used in the plain-error rule is synonymous with ‘clear’ or ‘obvious‘; error is not plain if the law was ‘unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.’ ” In re M.W., 232 Ill. 2d 408, 431 (2009) (quoting Piatkowski, 225 Ill. 2d at 565 n.2 (citing United States v. Olano, 507 U.S. 725, 734 (1993))). The plain-error analysis is based on the law at the time of trial. People v. Williams, 2015 IL App (2d) 130585, ¶ 11. Here, the trial court‘s hearing on the State‘s petition to deny defendant pretrial release was held on October 12, 2023. This court‘s decision in Rios, finding a trial court‘s similar action erroneous, was not filed until November 9, 2023. Rios, 2023 IL App (5th) 230724.
¶ 33 Although the trial court did not have the guidance of Rios, the law is clear when the plain language of the statute reveals the error was clear and obvious. In re M.W., 232 Ill. 2d at 432. Here, the Rios decision was based solely on statutory construction and relied on no extrinsic aids in interpreting the statute. Further, the statutory language examined in Rios was the same as that before the trial court. Therefore, we find the error is properly classified as “clear and obvious.” Although the law was in its infancy at the time of the hearing, the plain language of the statute clearly delineates when the State is authorized to file a petition for detention. As such, it is also necessary to address the second requirement for second-prong plain error.
¶ 34 “[U]nder the second prong of the plain error rule, the reviewing courts are not concerned with ‘prejudicial’ error.” Jackson, 2022 IL 127256, ¶ 24. “[T]he concern under the second prong of the plain error rule is addressing unpreserved errors that undermine the integrity and reputation of the judgment process regardless of the strength of the evidence or the effect of the error on the trial outcome.”
¶ 35 “‘[T]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.‘”
¶ 36 The analysis in Jackson and Thompson addressing what the court considers
¶ 37 Similarly, in Thompson, the issue was whether violation of
¶ 38 Here, defendant‘s claim is based on his fundamental right to liberty and relies on Smith, 2016 IL App (1st) 140496, ¶ 15, which found an erroneous sentence (as a Class X offender with a range of 6 to 30 years’ imprisonment instead of a Class 3 felony that had a sentencing range of 2 to 10 years’ imprisonment) amounted to plain error because it affected defendant‘s fundamental right to liberty. Id. ¶¶ 15, 16. The underlying basis for the language in Smith is seen in People v. McMann, 305 Ill. App. 3d 410, 414 (1999), which stated, “Sentencing issues may be reviewed as plain error where the issue is one of misapplication of the law, as the right to be sentenced is substantial and affects a defendant‘s fundamental right to liberty.” In the case at bar, sentencing is not an issue; in fact, the trial has not even commenced. It is equally notable that the defendant‘s arguments make no effort to explain why a denial of pretrial release is similar to a sentencing error beyond a vague claim that both involve a defendant‘s “fundamental right to liberty.”
¶ 39 “Both the standards and procedures for arrest and detention have been derived from the
¶ 40 While a state cannot reduce protection of individual rights below the minimum required under the United States Constitution, a state may impose a greater protection of rights under its state constitution. See Oregon v. Hass, 420 U.S. 714, 719 (1975); Williams v. Georgia, 349 U.S. 375, 399 (1955) (Clark, J., dissenting). Therefore, we must also consider the Illinois Constitution to determine if any greater right is found therein.
¶ 41 The Illinois Constitution states, “All persons shall be bailable by sufficient sureties, except for the following offenses where the proof is evident or the presumption great *** [and] when the court, after a hearing, determines that release of the offender would pose a real and present threat to the physical safety of any person.”
¶ 42 As in Jackson and Thompson, while an untimely petition under
¶ 43 The only other argument raised by defendant in his memoranda related to the trial court‘s order denying release related to his misdemeanor claim. Here, the argument is based on the lack of statutory authority to detain related to a misdemeanor claim. However, again, no claim of error or objection related to this issue was made before the trial court, and no request for plain-error review—under either prong—was requested or argued. Accordingly, we will honor defendant‘s forfeiture of the argument. See Hillier, 237 Ill. 2d at 545-46.
¶ 44 None of the errors raised in defendant‘s memoranda were presented to the trial court. Second-prong plain-error review is inapplicable, and no request for plain-error review was made for the remaining claim. As such, we find all the issues raised by defendant on appeal were forfeited and affirm the court‘s order denying defendant pretrial release.
III. CONCLUSION
¶ 45 ¶ 46 For the reasons stated above, we affirm the court‘s order of pretrial detention.
¶ 47 Affirmed.
¶ 48 JUSTICE McHANEY, dissenting:
¶ 49 While I agree with the majority that we have jurisdiction over the appeal, I respectfully dissent from the conclusion of the majority that second-prong plain-error review is inapplicable in this case. The majority correctly notes that in the cases of People v. Vingara, 2023 IL App (5th) 230698, and People v. Mosley, 2023 IL App (5th) 230823-U, no significant analysis of second-prong plain-error review was provided. Significant analysis was not provided because it was not necessary. In People v. Smith, 2016 IL App (1st) 140496, the court held that the defendant‘s failure to preserve an erroneous sentencing issue could still be considered under the second prong of plain-error review. Without any significant analysis, the court stated, “The court‘s misapplication of the law amounted to plain error because it affected defendant‘s fundamental right to liberty ***.” Smith, 2016 IL App (1st) 140496, ¶ 15. It is axiomatic that a defendant charged with a criminal offense is presumed innocent of that charge until he or she is adjudicated guilty beyond a reasonable doubt. It is equally axiomatic that locking that defendant in a jail cell until his or her presumption of innocence is overcome affects the defendant‘s fundamental right to liberty. It matters not that
¶ 50 Citing People v. Jackson, 2022 IL 127256, ¶ 63, the majority seeks to preclude second-prong plain-error review here by arguing that pretrial detention merely “touches” on a fundamental right. With respect to the Act, it is abundantly clear that the intent of the legislature was to consider pretrial detention as not merely “touching” on a fundamental right but as enveloping a fundamental right.
¶ 51 For the foregoing reasons, I respectfully dissent.
Decision Under Review: Appeal from the Circuit Court of Moultrie County, Nos. 23-CF-28, 23-CF-40, 23-CM-7, 23-DV-7; the Hon. Jeremy J. Richey, Judge, presiding.
Attorneys for Appellant: James E. Chadd and Carolyn R. Klarquist, 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.