THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. COLE A. SWAN, Defendant-Appellant.
NO. 5-23-0766
APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
November 28, 2023
2023 IL App (5th) 230766
JUSTICE CATES delivered the judgment of the court, with opinion. Justices Welch and McHaney concurred in the judgment and opinion.
NOTICE Decision filed 11/28/23. 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.
OPINION
¶ 1 The defendant, Cole A. Swan, appeals the triаl court‘s order of September 21, 2023, granting the State‘s petition to deny the defendant‘s pretrial release pursuant Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Safety, Accountability, Fairness and Equity-Today (SAFE-T) Act (Act).1 See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). The defendant claims that the Act does not allow the State to file a verified petition to deny pretrial release in cases whеre a defendant remains in custody after having been ordered released on the condition of depositing security. In this case, the defendant was arrested and detained before September 18, 2023—the date the Act went into effect. Accordingly, this appeal presents a narrow issue only relevant to those defendants who were arrested and detained prior to the effective date of the Act. Therefore, our holding should not be construed to affect those defendants arrested on or after the effective date of the Act. For the reasons that follow, we vacate the order of September 21, 2023, and remand the cause for further proceedings.
¶ 3 On September 8, 2023, the defendant was charged by information with three felony offenses in Jefferson County, Illinois. Count I alleged unlawful possession of methamphetamine with intent to deliver less than five grams (
¶ 4 On September 21, 2023, the State filed a verified petition to deny pretrial releаse pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (
¶ 5 On September 21, 2023, the trial court held a hearing on the State‘s petition to deny pretrial release. The defendant was represented by counsel. After considering the State‘s proffer and the arguments of counsel, the trial court entered a written order of detention. In the order, the trial court found by clear and convincing evidence that the proof was evident or the presumption great that the defendant had committed a detainable offense, i.e., a non-probationable drug offense, under section 110-6.1(a) of the Code; and that “nо condition or combination of conditions set forth in
¶ 6 II. ANALYSIS
¶ 7 A. The Act‘s Amendments to the Pretrial Release Provisions of the Code
¶ 8 Pretrial release is governed by article 110 of the Code, as amended by the Act.
¶ 9 Factors that the trial court may consider in making a “determination of dangerousness,” i.e., that the defendant poses a real and present threat to any person or the community include, but are
¶ 10 If the trial court finds that the State proved a valid threat to the safety of any person or the community and/or defendant‘s likely willful flight to avoid prosecution, or defendant‘s failure to abide by previously issued conditions of pretrial release, the trial court must determine which 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.”
¶ 11 If the trial court determines that the defendant should be dеnied pretrial release, the court is required to make written findings summarizing the reasons for denying pretrial release.
¶ 12 Additionally, the trial court‘s finding that the State presented clear and convincing evidence showing that mandatory conditions of release would fail to protect any person or the community, and/or that the defendant had a high likelihood of willful flight to avoid prosecution, or that the defendant failed to comply with previously issued conditions of pretrial release thereby requiring a modification or revocation of the previously issued conditions of pretrial release will not be reversed unless those findings are against the manifest weight of the evidence. See In re C.N., 196 Ill. 2d 181, 208 (2001) (setting a similar standard of review for requirement of clear and convincing evidence by the State in juvenile proceedings). “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). “Under the manifest weight standard, we give deference to the trial court as the finder of fact because it is in the best position to observe the conduct and demeanor of the parties and witnesses.” Deleon, 227 Ill. 2d at 332.
¶ 13 B. Whether the Trial Court Erred in Denying Pretrial Release
¶ 14 On appeal, thе defendant initially claims that the trial court erred when it granted the State‘s petition to detain him. He argues that the State did not have the authority to file a petition to deny pretrial release due to the timing requirements of section 110-6.1(c)(1) (
¶ 15 In response, the State claims that its ability to file a verified petition subsequent to the defendant‘s arrest and bond order was authorized by the intent and language of the Act, citing section 110-2(e) of the Code (
¶ 16 We first consider the defendant‘s claim that the State had no authority to file its petition and thus the trial court had no basis upon which to enter the order denying pretrial release. This issue involves a matter of statutory construction and is reviewed de novo. People v. Taylor, 2023 IL 128316, ¶ 45.
¶ 17 “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. Jackson, 2012 IL 111928, ¶ 48. “The statute shоuld be evaluated as a whole, with each provision construed in connection with every other section. When the statutory language is clear, we must apply the statute as written without resort to other tools of construction.” Jackson, 2012 IL 111928, ¶ 48.
¶ 18 Section 110-6.1 sets forth the prerequisites for denial of pretrial release.
“(1) A petition may be filed without prior notice to the defendant at the first appearance before a judge, or within the 21 calendar days, except as provided in Section 110-6, after arrest and release of the defendant upon reasonable notice to defendant; provided that while such petition is pending before the court, the defendant if previously released shall not be detained.”
725 ILCS 5/110-6.1(c)(1) (West 2022).
Under the plain language of this subsection, the State may file a petition to detаin 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. The exception to these timing requirements is set forth in section 110-6(i) (
¶ 19 Section 110-6 аddresses the revocation of pretrial release, the modification of conditions of pretrial release, and sanctions for violations of conditions of pretrial release and provides in pertinent part as follows:
“(a) When a defendant has previously been granted pretrial release under this Section for a Class A misdemeanor, that pretrial release may be revoked only if the defendant is charged with a felony or Class A misdemeanor that is alleged to have occurred during the defendant‘s pretrial release after a hearing on the court‘s own motion or
upon the filing of a verified petition by the State. * * *
(b) If a defendant previously has been granted pretrial release under this Section for a Class B or Class C misdemeanor offense, a petty or business offense, or an ordinance violation and if the defendant is subsequently charged with a felony that is alleged to have occurred during the defendant‘s pretrial release or a Class A misdemeanor offense that is alleged to have occurred during the defendant‘s pretrial release, such pretrial release may not be revoked, but the court may impose sanctions under subsection (c).
* * *
(i) Nothing in this Section shall be construed to limit the State‘s ability to file a verified petition seeking denial of pretrial release under subsection (a) of Section 110-6.1 or subdivision (d)(2) of Section 110-6.1.”
725 ILCS 5/110-6(a) , (b), (i) (West 2022).
¶ 20 We find that seсtion 110-6 is not applicable to the defendant because he had not been released from detention following his arrest and he had not been charged with any new offenses. Accordingly, the exception to the timing requirements set forth in section 110-6.1(c)(1) is also not applicable to the defendant. Based on the foregoing, we find that the State‘s petition to detain the defendant pursuant to section 110-6.1 was untimely and that the trial court did not havе the authority to detain the defendant pursuant to the untimely petition.
¶ 21 Although section 110-6 is inapplicable to the defendant, another section of the Code addresses persons who were arrested prior to the effective date of the Act and separates them into three categories.
¶ 22 The defendant belongs in the second category.
“(b) On or after January 1, 2023, any person who remains in pretrial detention after having been ordered released with рretrial 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).
¶ 23 Section 110-5(e) provides:
“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. If the reason for continued detention is due to the unavailability or the defendant‘s ineligibility for one or more pretrial cоnditions previously ordered by the court or directed by a pretrial services agency, the court shall reopen the conditions of release hearing to determine what available pretrial conditions exist that will reasonably ensure the appearance of a defendant as required, the safety of any other person, and the likelihood of compliance by the defendant with all the conditions of pretrial release. The inability of the defendant to pay for a condition of release or any other ineligibility for a condition of pretrial release shall
not be used as a justification for the pretrial detention of that defendant.” 725 ILCS 5/110-5(e) (West 2022).
¶ 24 We have reviewed the Code and analyzed the relevant provisions in each section together, rather than alone. Based upon our review, we find that defendants such as Swan who previously had a cash bond set have two options available. Under sections 110-5(e) and 110-7.5(b), a defendant may file a motion seeking a hearing to determine the reasons for continued detention. If the trial court finds that the defendant‘s continued detention is due to the “unavailability or the defendant‘s ineligibility for one or more pretrial conditions previously ordered by the court or directed by a pretrial services agency,” the trial court is required to “reopen” the cоnditions of release hearing.
¶ 25 Here, the defendant filed a motion for pretrial release that was not ruled on. On remand, the defеndant may elect to stand on the terms of his original pretrial conditions—an election that would require no action on his part—or he may pursue his motion for a hearing under section 110-5(e).
¶ 26 In sum, we find that the trial court erred in granting the State‘s untimely motion to deny pretrial release and that the error affectеd substantial rights of the defendant under the second prong of the plain-error doctrine.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we vacate the trial court‘s order of September 21, 2023, and remand the cause for further proceedings.
¶ 29 Order vacated; cause remanded.
Decision Undеr Review: Appeal from the Circuit Court of Jefferson County, No. 23-CF-272; the Hon. Jerry E. Crisel, Judge, presiding.
Attorneys for Appellant: Tiffany Boye Green, of State Appellate Defender‘s Office, of Chicago, Office of the State Appellate Defender Pretrial Fairness Act Appeals, of Chicago, for Appellant.
Attorneys for Appellee: David Joseph Robinson, of State‘s Attorneys Appellate Prosecutor‘s Office, of Springfield, State‘s Attorney Appellate Prosecutor, Pretrial Fairness Act Unit, of Springfield, for the People.