THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. JAMES WHITMORE, Defendant-Appellant.
No. 1-23-1807B
Appellate Court of Illinois, First Judicial District, Fifth Division
December 7, 2023
2023 IL App (1st) 231807B
PRESIDING JUSTICE MITCHELL delivered the judgment of the court, with opinion. Justice Lyle and Justice Navarro concurred in the judgment
Appeal from the Circuit Court of Cook County. No. 23 CR 544. Honorable Steven G. Watkins, Judge presiding.
PRESIDING JUSTICE MITCHELL delivered the judgment of the court, with opinion.
Justice Lyle and Justice Navarro concurred in the judgment and opinion.
OPINION
11 Defendant James Whitmore appeals the circuit court‘s September 21, 2023 order denying him pretrial release. This appeal raises three issues under the Pretrial Fairness Act: (1) Did the circuit court err in holding that section 6.1 of the Act applied to Whitmore when he had been ordered to be released on bond prior to the effective date of the Act but was still detained because he had not posted monetary bail? (2) Did the circuit court err in holding that the State‘s petition to deny pretrial release was timely? (3) Did the circuit court abuse its discretion in denying Whitmore pretrial release? For the following reasons, we hold that the circuit court did not err in concluding that the Act applies to Whitmore and that the State‘s petition was timely. We further hold that the circuit court did not abuse its discretion in denying Whitmore pretrial release.
12 James Whitmore was arrested and charged with possession of an explosive or incendiary device (
3 The Pretrial Fairness Act restructured the procedures in Illinois for pretrial release of criminal defendants awaiting trial. See
14 1.
15 Whitmore argues that section 110-6.1 of the Act does not apply to him because he was a person “who remain[ed] in pretrial detention after having been ordered released with pretrial conditions, including the condition of depositing security ***.”
16 When interpreting a statute, our fundamental objective “is to ascertain and give effect to the legislature‘s intent.” People v. Newton, 2018 IL 122958, 14. To do this, we look to “the language of the statute, given its plain and ordinary meaning” as “[t]he most rеliable indicator ***.” Id. However, it is not enough to read a provision in isolation, “[t]he statute should be evaluated as a whole, with each provision construed in connection with every other section.” Jackson v. Board of Election Commissioners of City of Chicago, 2012 IL 111928, 48. If the language is clear, “we must apply the statute as written without resort to other tools of construction.” Id. But where the statute is ambiguous, we “may consider the reason and necessity for the law, the evils it was intended to remedy, and its ultimate aims.” Taylor, 2023 IL 128316, 45 (quoting People v. Pullen, 192 Ill. 2d 36, 42 (2000)). Additionally, “we presume that, in enacting the statute, the legislature did not intend to produce absurd, inconvenient, or unjust results.” Id.
17 Whitmore‘s argument focuses on the language in subsection 110-7.5(b) of
18 Whitmore argues further thаt the language of subsection (a) applies only to subsection (a) and not to the rest of section 110-7.5. But the section clearly distinguishes between “subsections” and “sections” throughout. For instance, in subsection (b) the Act provides that “any person, not subject to subsection (b) *** shall be entitled to a hearing ***.” (Emphasis added.)
19 2.
10 The next question is whether the circuit court erred in finding that the timing requirement of subsection 110-6.1(c) did not apply here.
12 Moreover, Whitmore‘s reading of the statutе creates a distinction between defendants who were able to post monetary bond before it was abolished and defendants who could not. That is, Whitmore‘s argument would mean that defendants who were released from detention more than 21 days before the Act went into effect cannot be hailed back into court by the State for a detention hearing, but the State may petition the circuit court for a detention hearing for defendants who could not afford to pay bail and are now released under the Act. See
13 There is disagreement in the appellate court on how to resolve this apparent paradox. The Fourth District circumvented the timing requirement by holding that
“[f]or defendants arrested and detained before the Act‘s effective date who remained in detention after being granted pretrial release on the condition that they pay monetary bail, a motion to deny pretrial release following the Act‘s implementation operates as a motion to increase the pretrial release conditions to the furthest extent.” People v. Jones, 2023 IL App (4th) 230837, 17.
While this decision avoids requiring the State to abide by an impossible timing requirement, the reasoning is quite expansive.
14 In contrast, the Fifth District has held that subsection 110-6.1(c)‘s timing requirement applies to defendants who were previously ordered to be released on bail but that the State could seek pretrial detention through a hearing under subsection 110-5(e) (“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.“). See People v. Rios, 2023 IL App (5th) 230724, 12, 17; People v. Vingara, 2023 IL App (5th) 230698, 18, 22. This result is in tension with the Act‘s language suggesting that section 110-6.1 is the method by which a court may detain a defendant. See
15 To give meaning to all the provisions in the Act, it seems that the timing requirement must be read to allow the State to petition to detain defendants who were ordered to be released on bond prior to the Act‘s effective date. Consequently, for individuals detained prior to the effective date of the Act who elect to seek relief under the Act—and only for such individuals—the State may file a pеtition for the denial of pretrial release “at the first appearance before a judge” after the effective date of the Act.
16 Here, the State petitioned to deny Whitmore pretrial release after Whitmore moved for relief from the financial conditions of his release. The hearing on Whitmore‘s motion was his first appearance before a judge since the Act became effective. The State filed its petition on the same day as the hearing; however, it was filed before the hearing, not “at” the hearing. Nonetheless, the petition was filed to be heard “at the first appearance before a judge.” The Act‘s timing requirement is meant to prevent the State from having an unlimited window in which to hail defendants into court to determine whether they should be denied pretrial release. The Statе merely filing a petition early does not implicate this concern. It does not unfairly prejudice defendants. If anything, the advance notice provides them with a better opportunity to prepare a response. Therefore, the trial court did not err in hearing the State‘s petition.
17 3.
18 Whitmore next argues that, regardless of the Act‘s application to him, the State failed to show by clear and convincing evidence that he posed a “real and present threat to the safety of any person” or a risk of “willful flight” that “no condition or combination of conditions *** can mitigate ***.”
19 Under the Act, “defendants shall be presumed eligible for pretrial release” and the burden is on the State to prove by clear and convincing evidence that the defendant should not be released.
20 At Whitmore‘s detention hearing, the State proffered the following. In the early morning hours of December 8, 2022, surveillance cameras recorded a blue pick-up truck driving slowly past a house before turning onto a street at the end of an alley. Moments later, an individual could be seen walking toward the house from the dirеction that the pick-up truck had gone. The individual was visibly limping, had light gray hair, and was wearing a jacket, but the camera never caught his face. He was carrying a large object which he placed beneath a vehicle parked in the driveway in front of the house. The individual then ignited the object and ran. The object exploded, causing significant damage to the vehicle. Shortly thereafter, the blue pick-up truck could be seen speeding away from the scene.
21 When the police arrived they discovered that the bomb was composed of a bundle of commercial grade fireworks. The police also found a bottle of Dollar General brand lighter fluid in the alley where the individual was seen running after planting the explosive. The victim identified Whitmore as the person in the video and told the police that the blue truck in the video belonged to him. Whitmore and the victim had a history together spanning roughly 20 years, including a sporadic romantic relationship. In late 2022, the victim ended the relationship, but Whitmore wanted to rekindle the romance. He sent letters to the victim, which included $1,000, in an attempt to win her back. The victim rejected Whitmore‘s advances and returned the money. The last time that the two spoke was October 31, 2022, just over a month bеfore the victim‘s car was bombed.
22 With this information, the police obtained and executed a search warrant for Whitmore‘s home. They found two cardboard boxes there that contained bundles of commercial grade fireworks. They also found a bottle of Dollar General brand lighter fluid. Whitmore was subsequently
23 In response, Whitmore argued that he had not been provided with any discovery that would indicate that the explosion was caused by fireworks. Whitmore also noted that the fire department initially ruled that the explosion was accidental. Whitmore contends that the person in the video appears to be half-a-fоot to a foot taller than him and that, when the individual fled from the scene, he was running in a manner that Whitmore could not because Whitmore is 55 years old, has a limp, and suffered a stroke some time before the incident. Additionally, there were no eyewitnesses and only the victim identified Whitmore as the person in the video.
24 Based on the proffered facts, the circuit court could, within its discretion, conclude as it did—that Whitmore presented a real threat to the community that no conditions of pretrial release could mitigate. “The term ‘discretion’ implies the absence of a hard-and-fast rule.” The Styria v. Morgan, 186 U.S. 1, 9 (1902). An abuse of discretion occurs where a trial judge acts “arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed[s] the bounds of reason and ignore[s] recognized principles of law.” Zurich Insurance Co. v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595 (1991). Weighing thе factors implicated in setting the conditions of pretrial release has always been entrusted to the discretion of the trial judge. Simmons, 2019 IL App (1st) 191253, 9. The Pretrial Fairness Act does not change this and by its plain language requires that trial judges make individualized determinations based on a weighing of all of the relevant factors.
25 The September 21, 2023 order of the circuit court of Coоk County is affirmed.
26 Affirmed.
People v. James Whitmore, 2023 IL App (1st) 231807B
| Decision Under Review: | Appeal from the Circuit Court of Cook County, No. 23-CR-544; the Hon. Steven G. Watkins, Judge, presiding. |
| Attorneys for Appellant: | Sharone R. Mitchell and Kathryn Pelech, of Law Office of the Cook County Public Defender, of Chicago, for appellant. |
| Attorneys for Appellee: | Kimberly M. Foxx, State‘s Attorney, of Chicago (Leslie Billings, Assistant State‘s Attorney, of counsel), for the People. |