People v. Barner

2023 IL App (1st) 232147, 243 N.E.3d 913

• Court: Appellate Court of Illinois
• Decided: December 19, 2023
• Docket: 1-23-2147
• Status: Published

Opinion

2023 IL App (1st) 232147

SECOND DIVISION December 19, 2023

No. 1-23-2147B ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) Case No. 23200012701 ) JUDAH BARNER, ) Honorable ) Anthony Calabrese, Defendant-Appellant. ) Judge Presiding ) _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Cobbs concurred in the judgment and opinion.

OPINION

¶1 Defendant Judah Barner was arrested for criminal damage to government-supported

property, a Class D felony. He was released on a D-bond of $15,000 after depositing the

requisite ten percent. After the Pretrial Fairness Act took effect, defendant missed a Zoom court

appearance. The court issued a warrant for defendant, who was arrested and brought to court.

The State moved to revoke his bond. The court granted that motion, ordering that defendant be

detained “[t]ill the case is over.”

¶2 That was error. The Pretrial Fairness Act does not permit revocation of pretrial release for

the mere failure to appear; only the commission of a felony or Class A misdemeanor (or the

violation of an order of protection) while on pretrial release will warrant a revocation of pretrial No. 1-23-2147B

release. The court does have the authority to issue a sanction for the mere failure to appear,

including incarceration for up to 30 days. But the court did not hold a sanctions hearing and, in

any event, by the time this appeal reached this court, more than 30 days had passed, and

defendant remained in detention. We reverse the court’s judgment.

¶3 BACKGROUND

¶4 On August 11, 2023, defendant was charged with criminal damage to government-

supported property in an amount less than $500, a Class 4 felony. See 720 ILCS 5/21-1.01(a)(1)

(West 2022). The next day, defendant was given a D-bond of $15,000, which he posted on

August 28, 2023. He later appeared in court on the matter in person on August 29 and via Zoom

video conferencing on September 12.

¶5 All of this occurred before the sweeping reform of our pretrial-release system by the

Pretrial Fairness Act (PFA). See Rowe v. Raoul, 2023 IL 129248, ¶ 4; see generally 725 ILCS

5/110-2(a) (West 2022). The PFA took effect on September 18, 2023, after our supreme court

lifted its stay. See Rowe, 2023 IL 129248, ¶ 52.

¶6 Ten days after the PFA took effect, on September 28, 2023, defendant failed to appear by

Zoom at a hearing on this matter. The court issued an arrest warrant with a notification date of

October 26. Defendant did not appear in court by October 26. The next day, he was arrested on

the warrant.

¶7 On October 31, 2023, the State filed a petition for revocation under the PFA, not because

defendant had committed any additional offenses while released but simply claiming that “no

condition or combination of conditions of release would reasonably ensure the appearance of the

defendant for later hearings.”

¶8 Defendant’s counsel questioned how the State could seek to file a petition to revoke for

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this violation under the new law. The State clarified that it was because defendant “didn’t show

up to court,” and the court agreed that defendant allegedly failed to appear in court “as required

under the conditions of bond. So they do have a right then to proceed to revoke his current bond

based on his failure to appear.” Counsel renewed his objection, but the court said it believed it

could detain defendant, even on a “non-detainable” charge, if he failed to “follow the

requirements of pretrial release.”

¶9 The parties proceeded by way of proffer. The State recited the facts that led to

defendant’s initial charge, and the court took judicial notice that defendant was supposed to be in

court on September 28 but did not appear. Defendant was given a notice to appear on or before

October 26, with a warning that a warrant would be issued if he did not, and he was arrested

soon thereafter.

¶ 10 Counsel for defendant told the court that defendant did not appear in court via Zoom on

September 28 because “his computer was not working.” Counsel also said that defendant did not

receive notice from the clerk of the summons to appear or that a warrant would be issued if

defendant did not appear before October 26. Counsel also pointed out that defendant had

appeared at previous court hearings, and there was no record that defendant had missed a court

date previously.

¶ 11 The court concluded that “it’s clear that [defendant] is not likely to appear in this case”

and that no condition or set of conditions would ensure defendant’s appearance. It ordered the

defendant detained. When counsel asked the court for how long it would detain defendant, the

court responded, “Till the case is over.” Counsel replied, “No, that’s not the law,” to which the

court responded, “All right. Take it up. Take it up on appeal.” Defendant was taken into custody.

¶ 12 Defendant filed a notice of appeal. On November 29, he filed a memorandum in this

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court. In that memorandum, he argued that the State improperly filed a petition to revoke, the

court did not follow the applicable procedures regarding a failure-to-appear violation, and even if

the court’s actions could be construed as imposing a sanction on defendant, he had already

served the maximum sanction allowed for failing to appear—30 days in jail. See 725 ILCS

5/110-6(a), (c), (e), (f) (West 2022).

¶ 13 After reviewing defendant’s memorandum, we sensed the strong likelihood that

defendant was being held without legal authority, for the reasons given by defendant: (1) the

court lacked the authority to revoke defendant’s pretrial release for the mere failure to appear and

(2) even if it could be argued that the court was holding a sanctions hearing, not a revocation

hearing, any sanction was limited to 30 days’ detention, and those 30 days had already passed.

¶ 14 Recognizing that the State’s memorandum was not due until December 28, which would

leave defendant in detention over the holidays and long past any legal authority to detain him (if

any existed in the first place), we asked for a prompt response from the State. We did not ask the

State to submit a memorandum immediately, but we did order the State to answer one question

within a week: whether defendant should be immediately released from detention.

¶ 15 To its great credit, the State answered us the next day: “the People are of the opinion that

defendant Judah Barner should be immediately released.” We thus entered an order that same

day releasing defendant from custody immediately, with all previous conditions of bond to

remain in effect.

¶ 16 ANALYSIS

¶ 17 Though we released defendant immediately upon the State’s concession, we did not issue

a final judgment in this appeal. We do so now. Rather than merely dismissing the matter, we

choose to explain our reasoning. The courts are operating under a relatively new system, and we

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should take every opportunity to provide guidance to the trial courts at this early stage.

¶ 18 Defendant’s failure to appear occurred on September 28, 2023, after the amended

statutory scheme had taken effect. So any action that could be taken against defendant for

violating the terms of his bond was governed by the new laws, not the old; the court was required

to comply with section 110-6 of the Code of Criminal Procedure. See 725 ILCS 5/110-7.5(c)(5)

(West 2022) (“If there is an alleged violation of the conditions of pretrial release in a matter in

which the defendant has previously deposited security, the court having jurisdiction shall follow

the procedures for revocation of pretrial release or sanctions set forth in Section 110-6.”).

¶ 19 Under section 110-6, however, the court may revoke a defendant’s pretrial release “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 ***.” Id. § 110-6(a). (One other instance, not applicable

here, is if a defendant violates an order of protection; see id.)

¶ 20 In other words, the court may not revoke a defendant’s pretrial release merely for failing

to appear in court. So here, when the State moved for revocation of defendant’s pretrial release

not because he committed a felony or Class A misdemeanor during pretrial release but because

he missed a court appearance, the State asked the court to do something it was legally powerless

to do.

¶ 21 Though the State may not seek revocation for a defendant’s failure to appear in court, the

State may seek, and the court may enter, sanctions against a defendant for failure to appear. Id. §

110-6 (c), (d). So if a defendant, as here, allegedly fails to appear in court as required by the

conditions of his release, the court may issue a summons or a warrant for the defendant’s arrest

to have him brought to court for a hearing on sanctions. Id. § 110-6(c)(1) (court must follow

procedures in section 110-3 to ensure defendant’s appearance in court if defendant fails to appear

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as required by conditions of defendant’s release); id. § 110-3 (court may issue summons or

warrant for arrest of defendant for failure to comply with condition of pretrial release).

¶ 22 Once a defendant appears in court either via summons or warrant for his arrest, the State

may file a verified petition requesting sanctions. Id. § 110-6(d). At that hearing, the State must

prove, by clear and convincing evidence, that (1) the defendant committed an act that violated

the terms of his pretrial release; (2) the defendant had actual knowledge that his actions would

violate a court order; (3) the violation of that order was willful; and (4) the violation was not

caused by a lack of access to financial monetary resources. Id. § 110-6(e).

¶ 23 If the court finds that the State has satisfied its burden of proof, the sanctions the court

may impose include (1) a verbal or written admonishment; (2) imprisonment in the county jail

for no more than 30 days; or (3) a modification of pretrial release conditions. Id. § 110-6(f).

¶ 24 So even were we to construe the court’s actions here as a hearing on sanctions, the court

could not have detained him for more than 30 days as a sanction, and defendant was detained for

longer than that period of time. But it is clear that the court did not conduct a hearing on

sanctions. The court was presented with a motion for revocation of pretrial release. And the court

granted it, ordering defendant detained “[t]ill the case is over.” As the court had no legal

authority to revoke defendant’s pretrial release, we reverse that judgment.

¶ 25 As noted in our order discharging defendant from custody, defendant remains on pretrial

release with the previous conditions of bond.

¶ 26 CONCLUSION

¶ 27 The judgment of the circuit court is reversed.

¶ 28 Reversed.

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The People of the State of Illinois v. Judah Barner, 2023 IL App (1st) 232147

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 23200012701; the Hon. Anthony Calabrese, Judge, presiding.

Attorneys Sharone R. Mitchell, Jr., Public Defender (Rebecca Cohen, for Assistant Public Defender, of counsel), of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney (Enrique Abraham, Assistant for State’s Attorney, of counsel), of Chicago, for appellee. Appellee:

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