People v. Crago

2023 IL App (2d) 230323-U

• Court: Appellate Court of Illinois
• Decided: December 19, 2023
• Docket: 2-23-0323
• Status: Unpublished

Opinion

2023 IL App (2d) 230323-U No. 2-23-0323 Order filed December 19, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 23-CF-1776 ) JAMEY B. CRAGO, ) Honorable ) Charles D. Johnson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Justices Hutchinson and Kennedy concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in denying defendant’s motion to dismiss the State’s petition to detain; the trial court did not err in ordering defendant to be detained during the pendency of his case.

¶2 Defendant, Jamey B. Crago, was charged in the circuit court of Lake County with two

counts of felony domestic battery (720 ILCS 5/12-3.2(a)(1), 720 ILCS 5/12-3.2(a)(2) (West

2022)). The State filed a “People’s Verified Petition to Detain” (Petition) pursuant to section 110-

6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)).

Defendant filed a motion to dismiss and a motion for hearing under section 110-5 of the Code 2023 IL App (2d) 230323-U

(Motion for Hearing) (725 ILCS 5/110-5 (West 2022)). On September 20, 2023, a hearing was

held on all motions. Following the hearing, the trial court denied defendant’s motion to dismiss

and ordered that defendant be detained pending trial. Defendant filed a timely appeal. On appeal,

defendant argues that the court erred in denying his motion to dismiss and that the court erred in

ordering pretrial detention. For the reasons set forth below, we affirm.

¶3 I. BACKGROUND

¶4 On September 1, 2023, defendant was arrested and charged by complaint with two counts

of domestic battery (720 ILCS 5/12-3.2(a)(1), 720 ILCS 5/12-3.2(a)(2) (West 2022)). Both counts

were enhanced to a class 4 felony because defendant had prior domestic violence convictions.

Each count alleged that defendant “knowingly and without legal justification pushed Karen Lake

into a table causing a cut approx[imately] 5 inches long on her right calf” and that he “grabbed

Karen by her throat and slammed her into the bed and held her down by her throat.” At defendant’s

initial bond hearing on September 2, 2023, the court imposed a $250,000 bond (10% to apply) and

ordered that defendant have no contact with the complaining witness and that he be monitored by

probation. On September 5, 2023, the court increased defendant’s bond to $350,000 (10% to

apply). In addition to the requirements that defendant have no contact with the complaining witness

and that he be monitored by probation, the court added as conditions of bond that defendant

undergo an Ontario Domestic Assault Risk Assessment (ODARA) and that, in the event bond was

posted, defendant not be released under any circumstances until seen by a judge. Prior to the

September 20, 2023 hearing, defendant had not yet posted bond.

¶5 At the September 20, 2023 hearing, the trial court first addressed defendant’s motion to

dismiss. In support of his motion, defendant argued that the State’s Petition did not meet the

pleading requirements set forth in section 110-6.1(d) of the Code (725 ILCS 5/110-6.1(d) (West

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2022)). Rather, he argued, the State’s Petition merely alleged that defendant is a threat to the safety

of an individual and that the allegations are insufficient for a petition to detain. The State responded

that defendant was charged with a qualified offense under the statute and that the pleading was

sufficient to allow the State to prove by clear and convincing evidence defendant would pose a

threat to the safety of the community, and that no other set of conditions could mitigate this threat.

The trial court agreed with the State’s position. Reading section 110-6.1(d) of the Code, the trial

court found that there were specific articulable facts presented in the State’s Petition, that the

allegations were sufficient to present the question of a real and present threat, and that the State’s

allegations also sufficed to show that no condition was sufficient to keep defendant from

committing the same acts if granted pretrial release.

¶6 After the trial court denied defendant’s motion to dismiss, it addressed defendant’s Motion

for Hearing. The court addressed counsel for defendant, stating that “the defense has also filed a

pleading entitled Motion for Hearing Under 725 ILCS 5/110-5, which, as I briefly off the record

discussed with [defense counsel], is saying ‘I want to have a detention hearing;’ is that correct?”

The defense answered “Yes.” The trial court then held a detention hearing, without specifically

stating whether that hearing was pursuant to defendant’s Motion for Hearing or pursuant to the

State’s Petition.

¶7 During the detention hearing, both parties proffered a synopsis of the facts related to

defendant’s charges. According to the State, defendant made a threat to the complaining witness,

then grabbed her by the throat and threw her on a bed. Her leg struck a table, causing a laceration.

Multiple officers arrived on scene and observed redness on the complaining witness’s neck.

Defendant and the complaining witness were living together at the time this incident occurred.

According to defendant, he was the only person on the lease at the home where the incident

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occurred. Defendant stated that he and the complaining witness had been arguing earlier in the day

and he made it clear that he did not want the complaining witness there anymore. He locked the

complaining witness out of the house. Defendant claimed that the complaining witness would not

leave and that she sustained her injuries by knocking an air-conditioning unit out of a window and

climbing through that window.

¶8 The State also provided a Lake County Pretrial Services public safety assessment report

(Report), an ODARA Item Summary, and an Intimate Violence Risk Assessment. The Report

listed defendant’s prior criminal history. It documented that on August 24, 2023, defendant had

been placed on probation for felony domestic battery against a person other than the complaining

witness in the instant matter. Further, defendant had been placed on probation for misdemeanor

disorderly conduct on February 24, 2022, and on October 4, 2022, his probation in the case was

revoked and he was resentenced to jail. Defendant received a two-year sentence of conditional

discharge for a 2009 domestic battery case, which he completed satisfactorily. The report stated

that in 2008, he was sentenced in Pinellas Park, Florida, for “cruelty toward child,” for which he

received a “probation/parole violation.” The Intimate Violence Risk Assessment noted that

defendant scored 11 points out of a possible 13 on his ODARA Item Summary. This score placed

him in the highest category of risk for domestic-violence recidivism.

¶9 Based on the proffered evidence, the trial court ordered that defendant remain in pretrial

detention. The court noted that the offenses with which defendant was charged are crimes of

violence and the State’s proffer and charging document indicate that the complaining witness was

held down by her throat, indicating a high level of potential lethality. The ODARA reflected this

finding. Further, defendant was on probation for about 30 days before the instant offense occurred,

and although his probationary term for a domestic battery was directed towards a different person,

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it gave the trial court concern about defendant’s ability to comply with rules of the court such as

not committing any new offenses. Additionally, the trial court noted that defendant had “at least

one, if not more” prior domestic offenses. That history constituted, in the court’s opinion, a

potential of harm to the complaining witness and a potential of harm to various persons. Because

defendant was already on probation for the same class of offense at the time he committed the

instant offense, the court found that it would be insufficient to order that defendant be monitored

by probation as a condition of release. The court found support for the contention that defendant

has a propensity or reputation for violent, abusive, or assaultive behavior. That, coupled with

defendant’s very high ODARA score, led the court to believe that defendant posed a real and

present threat to the complaining witness and others and that it “could not conceive of any

condition or combination of conditions” that would mitigate the threat defendant posed. Based on

the court’s belief that no set of conditions would mitigate the threat to the complaining witness in

the instant matter, the court ordered defendant detained. This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 At issue here is whether defendant’s detention is authorized by 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

of Act as September 18, 2023).

1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither

of those names is official, as neither appears in the Illinois Compiled Statutes or the public act.

Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1.

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¶ 12 A. Defendant’s Motion to Dismiss

¶ 13 Defendant first contends that the trial court erred in denying his motion to dismiss.

Defendant argues that the State cited no specific statutory basis which allowed it to detain him and

that the State’s allegations did not satisfy the pleading requirements of section 110-6.1(d) of the

Code (725 ILCS 5/110-6.1(d) (West 2022)). At the hearing on the motion to dismiss and in

defendant’s notice of appeal, defendant argued that the State’s Petition was insufficient because it

did not meet the pleading requirements set forth in section 110-6.1. Id. In defendant’s

memorandum in support of his appeal (Memorandum), defendant for the first time argues that the

State’s Petition should have been dismissed because it was improperly timed. He contends that the

plain language of section 110-7.5(b) of the Code (725 ILCS 5/110-7.5(b) (West 2022)) applies to

the category of defendants like him, who were in custody prior to the Act taking effect. Defendant

cited People v. Rios, 2023 IL App (5th) 230724, for the proposition that the State may not bring

petitions to detain pursuant to section 110-6.1 for defendants in his position. The State argues that

defendant did not properly preserve this claim for appeal by focusing his argument at hearing on

the allegations of the State’s petition and whether those allegations were sufficient under section

110-6.1(d). The State also points to defendant’s notice of appeal, arguing that defendant does not

argue there that the State lacked a specific statutory basis to detain him. We agree with the State.

¶ 14 Illinois Supreme Court Rule 604(h) (eff. Sept. 18, 2023) governs appeals under the Act and

provides that “the Notice of Appeal shall describe the relief requested and the grounds for the relief

requested.” Supreme Court Rule 606(d) prescribes the forms for a notice of appeal under the Act

and requires a defendant to describe the grounds for the requested relief in detail. Ill. S. Ct. R.

606(d) (eff. Sept. 18, 2023). See also People v. Martin, 2023 IL App (4th) 230826, ¶ 18. “Supreme

Court Rules have the force of law. They are not suggestions, nor are they aspirational.” (Internal

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quotation marks omitted). Martin, 2023 IL App (4th) 230826, ¶ 18 (citing Keefe v. Freedom

Graphic Systems, Inc., 348 Ill. App. 3d 591, 593 (2004)). “ ‘Although we liberally construe the

contents of the notice of appeal, this court does not have authority to excuse compliance with the

filing requirements of the supreme court rules governing appeals.’ ” Id. (citing Estate of Young v.

Department of Revenue, 316 Ill. App. 3d 366, 373 (2000)).

¶ 15 In People v. Martin, the appellate court found that the defendant waived the issue of

whether the State had the authority under the Act to file a verified petition to deny him pretrial

release when he had been detained prior to the effective date of the Act but unable to post monetary

bond. Martin, 2023 IL App (4th) 230826, ¶ 16. The court found that he had waived appellate

review of these issues because he first argued them in his memorandum, rather than in his notice

of appeal. Id. ¶ 19. No matter how liberally the court construed the notice of appeal, it could not

find that the defendant had raised those issues. Id.

¶ 16 We find the same reasoning to apply to the instant matter. Defendant’s notice of appeal

does raise the issue of whether the State’s petition satisfied the requirements of the Act, but does

so to argue that the State’s Petition does not satisfy the requirements of section 110-6.1(d) of the

Code. Because defendant only raises the argument that State’s Petition was insufficient based on

its timing in his memorandum, we find that he waived this issue for appellate review. Thus, we

review whether the circuit court erred in denying the motion to dismiss based on the arguments

defendant made in the circuit court and in his notice of appeal.

¶ 17 On appeal, we review a circuit court’s ruling on a motion to dismiss de novo. People v.

Hull, 2020 IL App (3d) 190544, ¶ 6 (where neither the facts nor the credibility of the witnesses are

at issue, the standard of review is de novo). Here, defendant is not challenging the facts or the

credibility of the witnesses, but rather the sufficiency of the allegations in the State’s Petition.

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¶ 18 Under the Act, the court shall hold a pretrial detention hearing upon the filing of a verified

petition by the State. 725 ILCS 5/110-6.1(a) (West 2022). Section 110-6.1(d) outlines the contents

of a sufficient petition to deny pretrial release under Act. 725 ILCS 5/110-6.1(d) (West 2022). It

states:

“the petition shall be verified by the State and shall state the grounds upon which it

contends the defendant should be denied pretrial release, including the real and present

threat to the safety of any person or persons or the community, based on the specific

articulable facts or flight risk, as appropriate.” Id.

Defendant must also be charged with a qualifying offense in order for the State to file its verified

petition. 725 ILCS 5/110-2(a) (West 2022). Subsections 110-6.1(a)(1)-(8) lists a number of

offenses which could qualify a defendant for pretrial detention. 725 ILCS 5/110-6.1(a) et seq.

(West 2022).

¶ 19 Here, defendant takes issue with the grounds upon which the State brought its Petition.

Defendant argues one deficiency in the State’s Petition is that the State cited section 110-6.1

generally, without giving defendant notice of which subsection under the Act the State thought

applied to his case. At the time the State filed its Petition, defendant had been charged with

domestic battery. Section 110-6.1(a)(4) lists domestic battery as a qualifying offense (725 ILCS

5/110-6.1(a)(4) (West 2022)). It was not, as defendant argues, “guesswork” to find the provision

with which the State was able to bring its Petition, rather, the Act plainly lists the offense with

which defendant was charged as a qualifying offense in subsection 110-6.1(a)(4). Id. Although it

was brought pursuant to section 110-6.1 generally, rather than subsection 110-6.1(a)(4), we find

the State’s Petition was specific enough to meet the requirements of the Act. For the reasons above,

we affirm the trial court’s decision to deny defendant’s motion to dismiss.

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¶ 20 B. Defendant’s Pretrial Detention Hearing

¶ 21 Defendant next argues that the Court erred in denying him pretrial release. He contends

that the State failed to meet its burden of proving by clear and convincing evidence that the proof

was evident or the presumption was great that he committed the offense charged, that the State

failed to prove by clear and convincing evidence that defendant posed a real and present threat to

the safety of any person or persons or the community, and that the State failed to prove by clear

and convincing evidence that no condition or combination of conditions could mitigate that threat.

¶ 22 The Act amended the Code by abolishing traditional monetary bail in favor of pretrial

release on personal recognizance or with conditions of release. 725 ILCS 5/110-1.5, 110-2(a)

(West 2022). In Illinois, all persons charged with an offense are eligible for pretrial release. 725

ILCS 5/110-2(a), 110-6.1(e) (West 2022). Pretrial release is governed by article 110 of the Code

as amended by the Act. 725 ILCS 5/110-1 et seq. (West 2022). Under the Code, as amended, a

defendant’s pretrial release may only be denied in certain statutorily limited situations (qualifying

offenses). 725 ILCS 5/110-2(a), 110-6.1 (West 2022). For most of the qualifying offenses, upon

filing a verified petition requesting denial of pretrial release, the State has the burden to prove by

clear and convincing evidence that the proof is evident or the presumption great that the defendant

has committed a qualifying offense (725 ILCS 5/110-6.1(e)(1) (West 2022)), that the defendant’s

pretrial release poses a real and present threat to the safety of any person or persons or the

community (725 ILCS 5/110-6.1(a)(1)-(7), (e)(2) (West 2022)) or a high likelihood of willful flight

to avoid prosecution (725 ILCS 5/110-6.1(a)(8), (e)(3) (West 2022)), and that no condition or

combination of conditions can mitigate the real and present threat to the safety of any person or

the community or the defendant’s willful flight from prosecution (725 ILCS 5/110-6.1(e)(3) (West

2022)).

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¶ 23 In considering whether the defendant poses a real and present threat to the safety of any

person or the community, i.e., making a determination of “dangerousness,” the trial court may

consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature

and circumstances of any offense charged, including whether the offense was a crime of violence,

involved a weapon, or was a sex offense; (2) the history and characteristics of the defendant,

including the defendant’s prior criminal history indicative of violent, abusive, or assaultive

behavior and the defendant’s psychological history; (3) the identity of any person to whom the

defendant is believed to pose a threat and the nature of the threat; (4) any statements made by or

attributed to the defendant, together with the circumstances surrounding the statements; (5) the age

and physical condition of the defendant; (6) the age and physical condition of the victim or

complaining witness; (7) whether the defendant is known to possess or have access to any

weapons; (8) whether at the time of the current offense or any other offense, the defendant was on

probation, parole, or other form of supervised release from custody; and (9) any other factors,

including those listed in section 110-5 of the Code (725 ILCS 5/110-5 (West 2022)). 725 ILCS

5/110-6.1(g)(1)-(9) (West 2022).

¶ 24 If the trial court finds that the State proved a valid threat to the safety of any person or the

community, the defendant is likely to flee to avoid prosecution, or the defendant failed 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.” 725 ILCS 5/110-5(a) (West 2022). In reaching its

determination, the trial court must consider (1) the nature and circumstances of the offense

charged, (2) the weight of the evidence against the defendant, (3) the history and characteristics of

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the defendant, 2 (4) the nature and seriousness of the real and present threat to the safety of any

person or the community that would be posed by the defendant’s release, and (5) the nature and

seriousness of the risk of obstructing or attempting to obstruct the criminal justice process. 725

ILCS 5/110-5(a) (West 2022). The statute lists no singular factor as dispositive. See 725 ILCS

5/110-5(a) (West 2022).

¶ 25 Our standard of review is twofold. We review under the manifest-weight-of-the-evidence

standard the trial court’s factual findings regarding whether the State presented clear and

convincing evidence that mandatory conditions of release would fail to protect any person or the

community, the defendant has a high likelihood of willful flight to avoid prosecution, or 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. See In re C.N.,

196 Ill. 2d 181, 208 (2001) (applying a similar standard of review for the requirement of clear and

convincing evidence by the State in termination-of-parental-rights proceeding). A finding is

against the manifest weight of the evidence only where the opposite conclusion is clearly apparent

or if the finding is unreasonable, arbitrary, or not based on the evidence presented. In re Jose A.,

2 The history and characteristics of the defendant include: “[T]he defendant’s character,

physical and mental condition, family ties, employment, financial resources, length of residence

in the community, community ties, past relating to drug or alcohol abuse, conduct, *** criminal

history, and record concerning appearance at court proceedings” as well as “whether, at the time

of the current offense or arrest, the defendant was on probation, parole, or on other release pending

trial, sentencing, appeal, or completion of sentence for any offense under federal law, or the law

of this or any other state.” 725 ILCS 5/110-5(a)(3)(A)-(B) (West 2022).

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2018 IL App (2d) 180170, ¶ 17. We review the trial court’s ultimate determination regarding

pretrial release for an abuse of discretion. See People v. Simmons, 2019 IL App (1st) 191253, ¶ 9

(applying abuse-of-discretion standard in reviewing ruling denying the defendant’s motion for bail

pending trial under Illinois Supreme Court Rule 604(c)(1) (eff. July 1, 2017)). An abuse of

discretion occurs only when the trial court’s decision is arbitrary, fanciful, or unreasonable or

where no reasonable person would take the view adopted by the trial court. People v. Williams,

2022 IL App (2d) 200455, ¶ 52.

¶ 26 Defendant first contends that the State failed to prove by clear and convincing evidence

that the proof is evident or the presumption is great that he committed the offense charged. He

argues that because he presented an alternative version of events, where the complaining witness

was injured by climbing through a window, that the State had not met its burden of proof. While

defendant did provide another explanation for the injuries, we do not find that the trial court’s

decision was against the manifest weight of the evidence. Based on the statements of the

complaining witness and the injuries police officers observed on her body, it was not arbitrary,

unreasonable, or lacking a basis in the evidence for the trial court to find that the proof was evident

or the presumption great that defendant committed domestic battery.

¶ 27 Next, defendant argues that the State failed to prove by clear and convincing evidence that

he poses a real and present threat to the safety of any person or persons or the community because

defendant was in the midst of seeking treatment for issues related to domestic battery when the

alleged offense occurred. Additionally, defendant argues that because there were no allegations

that he had ever stalked the complaining witness and because he could find a place to reside where

she would not be, any risk to the complaining witness was mitigated. We find these arguments

unconvincing.

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¶ 28 In determining whether defendant posed a threat to the complaining witness or any other

person or the community, the trial court went assiduously addressed the factors listed in the statute.

It noted that defendant was charged with a crime of violence. Defendant is alleged to have held

the complaining witness down by her throat, indicating a high level of lethality. Further,

defendant’s criminal history reflects several other similar charges and a failure to comply with

court orders, as defendant has received multiple probation violations. Defendant was on probation

for approximately a month when he allegedly committed the instant offense, a violation of his

current term of probation. Further, defendant’s other domestic battery offenses were committed

against other individuals. Upon review of the statutory factors, it is not unreasonable or arbitrary

to conclude that defendant poses a risk to the complaining witness and others. While it is true that

there was no allegation of stalking and defendant asserted he could find another place to stay, the

defendant’s history clearly indicates a pattern of violence toward multiple individuals.

Additionally, the mere fact that defendant was planning to start engaging in domestic violence

treatment does not compel us to conclude that any threat of harm is substantially mitigated. The

trial court’s ruling was not against the manifest weight of the evidence.

¶ 29 Finally, defendant argues that the State failed to prove by clear and convincing evidence

that no condition or combination of conditions would mitigate the real and present safety risk

posed if he were to be granted pretrial release. Defendant indicates that any threat to the safety of

a person or persons or the community would be mitigated by having him live separately from the

complaining witness, attend treatment for domestic violence, and report to probation as otherwise

directed. Defendant argues that this arrest is the only evidence of his ability to follow court rules,

and that the evidence is negated by his version of events, where he maintains his innocence. We

disagree. The record demonstrates multiple instances where defendant was unable to follow court

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rules, had his probation revoked, and was resentenced to a term of jail. Thus, it was not

unreasonable for the trial court to find that no condition or combination of conditions would

mitigate the real and present safety risk posed by defendant’s pretrial release.

¶ 30 Based on our review of the record, the factual findings of the trial court that defendant met

the standard of dangerousness, he posed a real and present threat to any person or the community

if released, and no condition or combination of conditions could mitigate this threat are not against

the manifest weight of the evidence. As a result, based upon the trial court’s factual findings, we

conclude that its order denying pretrial release was not an abuse of discretion.

¶ 31 III. CONCLUSION

¶ 32 For the reasons set forth above, we affirm the judgment of the circuit court of Lake County.

¶ 33 Affirmed.

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