People v. Fox

2024 IL App (5th) 240230-U

• Court: Appellate Court of Illinois
• Decided: April 22, 2024
• Docket: 5-24-0230
• Status: Unpublished

Opinion

2024 IL App (5th) 240230-U NOTICE NOTICE Decision filed 04/22/24. The This order was filed under text of this decision may be NO. 5-24-0230 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Vermilion County. ) v. ) No. 24-CF-52 ) ADAM FOX, ) Honorable ) Robert E. McIntire, Defendant-Appellee. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Presiding Justice Vaughan and Justice Boie concurred in the judgment.

ORDER

¶1 Held: We reverse the circuit court’s order denying the State’s petition for pretrial detention where the manifest weight of the evidence demonstrated that no conditions could mitigate the threat defendant posed to others and the court abused its discretion by granting defendant pretrial release with conditions.

¶2 The State appeals the January 30, 2024, order of the circuit court of Vermilion County

denying the State’s petition for pretrial detention and granting defendant, Adam Fox, pretrial

release with conditions, 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 as codified in article

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

1 “The Act has also sometimes been referred to in the press as the Pretrial Fairness Act. Neither name is official, as neither appears in the Illinois Compiled Statutes or public act.” Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions of the Code); Rowe v.

Raoul, 2023 IL 129248, ¶ 52 (lifting stay and setting effective date as September 18, 2023). On

appeal, the State argues that the circuit court abused its discretion by granting defendant pretrial

release where it proved, by clear and convincing evidence, that no condition or combination of

conditions could mitigate the threat defendant posed to others. For the following reasons, we

reverse the circuit court’s order granting defendant pretrial release and remand the matter for

further proceedings in the circuit court.

¶3 I. BACKGROUND

¶4 On January 29, 2024, the State charged defendant by information with one count of

knowing possession of a stolen firearm (720 ILCS 5/24-3.8(a) (West 2022)), a Class 2 felony, one

count of unlawful possession of a weapon by a felon (id. § 24-1.1(a)), a Class 3 felony, and one

count of unlawful use of a weapon (id. § 24-1(a)(1)), a Class A misdemeanor. That same day, the

State filed a verified petition to deny defendant pretrial release pursuant to section 110-6.1 of the

Code (725 ILCS 5/110-6.1 (West 2022)), alleging that defendant was charged with a detainable

offense, that he posed a real and present threat to the safety of any person or persons or the

community, and that no condition or combination of conditions could mitigate the real and present

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

facts of the case.

¶5 On January 30, 2024, the circuit court held a hearing on the State’s petition. At the hearing,

the State proffered that, shortly after midnight on January 28, 2024, law enforcement found

defendant passed out inside of a running vehicle in a McDonald’s parking lot in Hoopeston,

Illinois. Law enforcement noted that defendant’s foot was on the brake of the vehicle, so one

officer parked a squad car in front of the vehicle in case defendant’s foot slipped off the brake

when law enforcement attempted to wake him. After law enforcement shook defendant several 2 times, he awoke and released his foot off the brake pedal, causing the car to roll into the parked

squad car. Law enforcement suspected that defendant was under the influence. When law

enforcement opened the car door, officers located a loaded 9-millimeter handgun between the

driver side door and defendant. Law enforcement learned that the gun had been reported stolen six

months earlier.

¶6 The State argued that defendant posed a threat to the community and requested that the

circuit court order him detained. In support, the State noted that defendant’s criminal history

included the following:

“A 2020 DUI case, where he received court supervision. That court supervision terminated

previously. He is not on court supervision at this time for that offense. He has a 2018

aggravated unlawful use of a weapon, a Class 4 felony, where he was given 24 months of

probation; a 2018 case, burglary, where he has a conviction. The sentencing information

that we initially had was unclear. He also has a 2016 case out of Indiana, which is a

possession of a controlled substance. That was a Class 4 felony, 24 months of probation as

the disposition.”

The State also clarified that defendant was charged with knowing possession of a stolen firearm

and that defendant acknowledged he did not have a firearm owners’ identification (FOID) card.

Accordingly, the State requested that defendant be detained or, if released, that defendant be placed

on GPS monitoring with all other standard terms and conditions of pretrial release, including the

surrender of any firearms, weapons, or ammunition.

¶7 Counsel for defendant argued that there was no evidence showing that defendant

knowingly possessed a stolen firearm. Counsel noted that defendant complied with law

enforcement on January 28, 2024, and that the fact “that a gun was found near him [was] not clear

and convincing evidence that he’s a danger to the community.” Counsel posited that “[t]here has 3 to be more than there was just a gun.” Counsel also argued that defendant provided financial

support for his child and that his family members were present in the courtroom supporting him.

Counsel asserted that defendant had a minimal criminal history and that he successfully completed

supervision or probation for the offenses outlined by the State. Counsel further asserted that there

was no need for GPS monitoring. Accordingly, counsel requested that defendant be released with

conditions, including the condition that he not possess a firearm or other dangerous weapon.

¶8 After considering the State’s proffer and the arguments made by the parties, the circuit

court found that the proof was evident, and the presumption great, that defendant committed a

detainable offense. The court found, however, that it could not detain defendant based on the

State’s proffer. The court then stated,

“I guess my biggest concern, really, is I’m a little bit concerned about [defendant]

being out there driving around in the condition that he may have been found in. That’s

really where the danger might be. But you know, I don’t know that that’s enough for me to

detain on either of these particular offenses, so I’m going to let [defendant] go.

And he does have a bit of a criminal history, but frankly, the criminal history also

tells me he’s a local resident, and in any event, we’re not dealing with an allegation that

he’s a flight risk, even though the non-probationable charge might give a person some sort

of incentive to find another place to live beyond the reach of law enforcement. I would

merely suggest to you, [defendant], that would be a very bad idea, in terms of the progress

of your case.”

The court denied the State’s request for GPS monitoring.

¶9 Also, on January 30, 2024, the circuit court entered a written pretrial release order denying

the State’s petition for detention and ordering defendant released with conditions. The conditions

required defendant to appear in court to answer the charge as ordered by the court, submit to the 4 orders and process of the court, not violate any criminal statute of any jurisdiction, and file written

notice with the clerk of the court within 24 hours after a change of address. The court also imposed

additional conditions that defendant report to pretrial services and comply with their reporting

requirements, not leave the State of Illinois without permission of the court, and refrain from

possessing a firearm or other dangerous weapons. The State timely appealed. Ill. S. Ct. R.

604(h)(2) (eff. Dec. 7, 2023).

¶ 10 II. ANALYSIS

¶ 11 On appeal, the State argues that the circuit court abused its discretion by finding that the

State failed to meet its burden of proving, by clear and convincing evidence, that no condition or

combination of conditions could mitigate the threat defendant posed to others. The State requests

that this court reverse the court’s order granting defendant pretrial release and remand with

directions that defendant be detained prior to trial or, alternatively, with directions that defendant

be subject to GPS monitoring as a condition of his release.

¶ 12 Pretrial release, including any conditions related thereto, is governed by the Act as codified

in article 110 of the Code (725 ILCS 5/art. 110 (West 2022)). Under the Code, as amended by the

Act, a defendant’s pretrial release may only be denied in certain statutorily limited situations. Id.

§ 110-6.1. In Illinois, we presume all defendants are entitled to pretrial release. Id. §§ 110-2(a),

110-6.1(e). Upon filing a timely 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 (1) the defendant committed a qualifying offense, (2) the defendant’s pretrial release

poses a real and present threat to the safety of any person or the community or a flight risk, and

(3) less restrictive conditions would not avoid a real and present threat to the safety of any person

or the community and/or prevent the defendant’s willful flight from prosecution. Id. § 110-6.1(e),

(f). 5 ¶ 13 Factors that the circuit 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 not limited to, (1) the nature and circumstances of any offense charged, including whether the

offense is a crime of violence involving a weapon or a sex offense; (2) the history and

characteristics of the defendant; (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 (id. § 110-5). Id. § 110-6.1(g).

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

the community and/or the defendant’s likely willful flight to avoid prosecution, or the defendant’s

failure to abide by previously issued conditions of pretrial release, the 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.” Id. § 110-5(a). In reaching its

determination, the circuit 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

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

2 The defendant’s history and characteristics include: “the 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 6 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. Id. The statute lists no singular

factor as dispositive. See id.

¶ 15 Our standard of review of pretrial release determinations is twofold. The circuit court’s

factual findings will be reviewed under the manifest weight of the evidence standard. People v.

Trottier, 2023 IL App (2d) 230317, ¶ 13. “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). The circuit

court’s ultimate determination regarding pretrial release will not be reversed absent an abuse of

discretion. People v. Swan, 2023 IL App (5th) 230766, ¶ 11. An abuse of discretion occurs when

the decision of the circuit court is arbitrary, fanciful, unreasonable, or when no reasonable person

would agree with the position adopted by the circuit court. Id.

¶ 16 Here, no reasonable person could find that releasing defendant with conditions would

mitigate the threat of harm he posed to others. The State’s proffer demonstrated that law

enforcement found defendant asleep behind the wheel of a running vehicle with a loose, stolen

firearm within his reach in a McDonald’s parking lot. Law enforcement suspected that defendant

was intoxicated when they discovered him. Defendant’s criminal history included a “2020 DUI

case,” a “2018 aggravated unlawful use of a weapon” offense, a 2018 burglary offense, and a 2016

possession of a controlled substance offense. The State’s proffer indicated that defendant had

received court supervision or probation for several of his prior offenses. We agree with the State

that the combination of facts in this case—defendant’s possession of a stolen firearm, despite his

defendant was on probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal law, or the law of this or any other state.” 725 ILCS 5/110-5(a)(3)(A), (B) (West 2022). 7 status as a convicted felon, the condition law enforcement found him in while operating a vehicle,

and his criminal background—was sufficient to establish by clear and convincing evidence that he

posed a threat to the safety of the community. Moreover, we find the circuit court’s decision to

grant defendant pretrial release with the condition that he surrender any firearm or dangerous

weapon unreasonable, given the fact that defendant was charged with unlawful possession of a

weapon by a felon. In other words, defendant was restricted from carrying a firearm based on his

status as a felon, yet he was allegedly found in possession of a firearm when law enforcement

discovered him asleep behind the wheel of a running vehicle.

¶ 17 Under these circumstances, we conclude that the circuit court’s finding that the State failed

to prove, by clear and convincing evidence, that defendant posed a threat to the safety of the

community was against the manifest weight of the evidence. We also conclude that the court

abused its discretion by ordering defendant released with conditions, where the manifest weight of

the evidence demonstrated that no condition or combination of conditions could mitigate the threat

defendant posed to others. Thus, we conclude that the circuit court erred by denying the State’s

petition for pretrial detention and granting defendant pretrial release.

¶ 18 III. CONCLUSION

¶ 19 For the reasons stated, we reverse the circuit court’s January 30, 2024, order and remand

the cause for further proceedings consistent with this order.

¶ 20 Reversed and remanded.