2023 IL App (5th) 230830-U NOTICE NOTICE Decision filed 12/08/23. The This order was filed under text of this decision may be NO. 5-23-0830 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Bond County. ) v. ) No. 22-CF-17 ) DEMARCUS GURLLY, ) Honorable ) Christopher J.T. Bauer, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: We vacate the circuit court’s detention order where the State filed an untimely petition to detain.
¶2 The defendant, Demarcus Gurlly, appeals the trial court’s written order of September 19,
2023, denying the defendant’s pretrial release pursuant to 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). Because the defendant was arrested and detained prior to the date the Act went into
1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, as neither appears in the Illinois Compiled Statutes or public act. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 effect, this appeal presents a narrow issue relevant to only those defendants who were arrested and
detained prior to the effective date of the Act. For the following reasons, we vacate the circuit
court’s detention order of September 19, 2023.
¶3 I. BACKGROUND
¶4 On February 14, 2022, the defendant was charged by information with 10 counts of first
degree murder and one count of obstructing justice. On the same date, the circuit court set the
defendant’s bond at $1 million, with no additional conditions of release. The defendant remained
in pretrial detention.
¶5 On September 12, 2023, six days before the Act became effective, the State filed a verified
petition to deny defendant pretrial release pursuant to section 110-6.1 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). The State’s petition was called for
hearing on September 19, 2023. The defendant’s counsel did not object to the filing of the petition.
At the conclusion of the hearing, the circuit court entered an order denying the defendant pretrial
release. The defendant filed a timely notice of appeal on October 2, 2023.
¶6 II. ANALYSIS
¶7 On appeal, the defendant argues that the circuit court erred when it granted the State’s
petition to detain him because 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) (id. § 110-6.1(c)(1)). The defendant
acknowledges that his attorney did not object to the State’s petition and that this claim of error was
not raised in his notice of appeal. The defendant seeks review of the claimed error under the second
prong of the plain-error doctrine. Under the second prong of plain-error review, a reviewing court
may consider a forfeited error when the error is so serious that it deprives the defendant of a
substantial right. People v. Herron, 215 Ill. 2d 167, 170 (2005). In the alternative, the defendant
2 contends that his counsel’s failure to object to the State’s petition constituted ineffective assistance
of counsel.
¶8 Concerning the defendant’s first argument, this court recently addressed this issue in
People v. Rios, 2023 IL App (5th) 230724. This court determined that the plain language of section
110-6.1(c)(1) (725 ILCS 5/110-6.1(c)(1) (West 2022)) set forth a deadline for the State to file a
petition to detain. Specifically, this court determined that:
“The State may file a petition to detain 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.” Rios, 2023 IL App (5th) 230724, ¶ 10.
¶9 This court went on to find that the exceptions to the above timing requirement set forth in
section 110-6 (725 ILCS 5/110-6 (West 2022)) were not applicable to the defendant since the
defendant had not been released following his arrest and no new offenses had been alleged. Rios,
2023 IL App (5th) 230724, ¶ 12. As such, this court determined in Rios that the State’s petition to
detain pursuant to section 110-6.1 was untimely, and that the circuit court did not have the authority
to detain the defendant pursuant to the untimely petition. Id. For the reasons set forth in Rios, we
make the same determination in this matter and find that the State’s petition was untimely, and
that the circuit court did not have the authority to detain the defendant pursuant to the untimely
petition.
¶ 10 This court, in Rios, went on to find that the defendant fell within section 110-7.5(b) of the
Code (725 ILCS 5/110-7.5(b) (West 2022)), as he was a person who remained in pretrial detention,
on or after January 1, 2023, after having been ordered released with pretrial conditions. Rios, 2023
3 IL App (5th) 230724, ¶ 14. Section 110-7.5(b) states that such a defendant “shall be entitled to a
hearing under subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). This court
further found that, in reviewing and analyzing sections 110-6.1(c)(1), 110-6, and 110-5(e) (id.
§§ 110-6.1(c)(1), 110-6, 110-5(e)), along with one another and the entire Code, defendants, such
as the defendant in Rios and the defendant in this matter, have the following two options:
“Under sections 110-7.5(b) and 110-5(e), a defendant may file a motion seeking a hearing
to have their pretrial conditions reviewed anew. Alternatively, a defendant may elect to
stay in detention until such time as the previously set monetary security may be paid. A
defendant may elect this option so that they may be released under the terms of the original
bail.” Rios, 2023 IL App (5th) 230724, ¶ 16.
¶ 11 This court came to the above conclusion because, although the plain language of section
110-1.5 of the Code (725 ILCS 5/110-1.5 (West 2022)) abolished the requirement of posting a
monetary bail, it did not eliminate the option to post the previously ordered security, and some
defendants may prefer the second option, as opposed to requesting a hearing. Rios, 2023 IL App
(5th) 230724, ¶ 17. Accordingly, the defendant may elect to stand on his original pretrial condition
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2023 IL App (5th) 230830-U NOTICE NOTICE Decision filed 12/08/23. The This order was filed under text of this decision may be NO. 5-23-0830 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Bond County. ) v. ) No. 22-CF-17 ) DEMARCUS GURLLY, ) Honorable ) Christopher J.T. Bauer, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: We vacate the circuit court’s detention order where the State filed an untimely petition to detain.
¶2 The defendant, Demarcus Gurlly, appeals the trial court’s written order of September 19,
2023, denying the defendant’s pretrial release pursuant to 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). Because the defendant was arrested and detained prior to the date the Act went into
1 The Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither name is official, as neither appears in the Illinois Compiled Statutes or public act. See Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1. 1 effect, this appeal presents a narrow issue relevant to only those defendants who were arrested and
detained prior to the effective date of the Act. For the following reasons, we vacate the circuit
court’s detention order of September 19, 2023.
¶3 I. BACKGROUND
¶4 On February 14, 2022, the defendant was charged by information with 10 counts of first
degree murder and one count of obstructing justice. On the same date, the circuit court set the
defendant’s bond at $1 million, with no additional conditions of release. The defendant remained
in pretrial detention.
¶5 On September 12, 2023, six days before the Act became effective, the State filed a verified
petition to deny defendant pretrial release pursuant to section 110-6.1 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/110-6.1 (West 2022)). The State’s petition was called for
hearing on September 19, 2023. The defendant’s counsel did not object to the filing of the petition.
At the conclusion of the hearing, the circuit court entered an order denying the defendant pretrial
release. The defendant filed a timely notice of appeal on October 2, 2023.
¶6 II. ANALYSIS
¶7 On appeal, the defendant argues that the circuit court erred when it granted the State’s
petition to detain him because 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) (id. § 110-6.1(c)(1)). The defendant
acknowledges that his attorney did not object to the State’s petition and that this claim of error was
not raised in his notice of appeal. The defendant seeks review of the claimed error under the second
prong of the plain-error doctrine. Under the second prong of plain-error review, a reviewing court
may consider a forfeited error when the error is so serious that it deprives the defendant of a
substantial right. People v. Herron, 215 Ill. 2d 167, 170 (2005). In the alternative, the defendant
2 contends that his counsel’s failure to object to the State’s petition constituted ineffective assistance
of counsel.
¶8 Concerning the defendant’s first argument, this court recently addressed this issue in
People v. Rios, 2023 IL App (5th) 230724. This court determined that the plain language of section
110-6.1(c)(1) (725 ILCS 5/110-6.1(c)(1) (West 2022)) set forth a deadline for the State to file a
petition to detain. Specifically, this court determined that:
“The State may file a petition to detain 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.” Rios, 2023 IL App (5th) 230724, ¶ 10.
¶9 This court went on to find that the exceptions to the above timing requirement set forth in
section 110-6 (725 ILCS 5/110-6 (West 2022)) were not applicable to the defendant since the
defendant had not been released following his arrest and no new offenses had been alleged. Rios,
2023 IL App (5th) 230724, ¶ 12. As such, this court determined in Rios that the State’s petition to
detain pursuant to section 110-6.1 was untimely, and that the circuit court did not have the authority
to detain the defendant pursuant to the untimely petition. Id. For the reasons set forth in Rios, we
make the same determination in this matter and find that the State’s petition was untimely, and
that the circuit court did not have the authority to detain the defendant pursuant to the untimely
petition.
¶ 10 This court, in Rios, went on to find that the defendant fell within section 110-7.5(b) of the
Code (725 ILCS 5/110-7.5(b) (West 2022)), as he was a person who remained in pretrial detention,
on or after January 1, 2023, after having been ordered released with pretrial conditions. Rios, 2023
3 IL App (5th) 230724, ¶ 14. Section 110-7.5(b) states that such a defendant “shall be entitled to a
hearing under subsection (e) of Section 110-5.” 725 ILCS 5/110-7.5(b) (West 2022). This court
further found that, in reviewing and analyzing sections 110-6.1(c)(1), 110-6, and 110-5(e) (id.
§§ 110-6.1(c)(1), 110-6, 110-5(e)), along with one another and the entire Code, defendants, such
as the defendant in Rios and the defendant in this matter, have the following two options:
“Under sections 110-7.5(b) and 110-5(e), a defendant may file a motion seeking a hearing
to have their pretrial conditions reviewed anew. Alternatively, a defendant may elect to
stay in detention until such time as the previously set monetary security may be paid. A
defendant may elect this option so that they may be released under the terms of the original
bail.” Rios, 2023 IL App (5th) 230724, ¶ 16.
¶ 11 This court came to the above conclusion because, although the plain language of section
110-1.5 of the Code (725 ILCS 5/110-1.5 (West 2022)) abolished the requirement of posting a
monetary bail, it did not eliminate the option to post the previously ordered security, and some
defendants may prefer the second option, as opposed to requesting a hearing. Rios, 2023 IL App
(5th) 230724, ¶ 17. Accordingly, the defendant may elect to stand on his original pretrial condition
to post monetary bail or he may file a motion for hearing under section 110-5(e).
¶ 12 We find that the circuit court erred in granting the State’s untimely motion to deny pretrial
release and that the error affected substantial rights of the defendant under the second prong of the
plain-error doctrine. In light of this determination, we need not address the defendant’s remaining
issues on appeal. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Piatkowski, 225 Ill. 2d 551, 564-
65 (2007); People v. Swan, 2023 IL App (5th) 230766, ¶ 26. Accordingly, the detention order
issued September 19, 2023, is vacated, and the original bond is reinstated. On remand, defendant
may elect to stand on the terms of his original pretrial conditions—an election that requires no
4 action on his part—or he may file a motion for a hearing under section 110-5(e). Swan, 2023 IL
App (5th) 230766, ¶ 25.
¶ 13 III. CONCLUSION
¶ 14 For the reasons stated, we vacate the circuit court’s order granting the State’s petition to
detain and remand the matter back to the court for further proceedings.
¶ 15 Order vacated; cause remanded.