People v. Hernandez-Pernalete

2024 IL App (1st) 240734-U

• Court: Appellate Court of Illinois
• Decided: June 5, 2024
• Docket: 1-24-0734
• Status: Unpublished

Opinion

2024 IL App (1st) 240734-U No. 1-24-00734B Order filed June 5, 2024

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

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 24 MC 1100891 ) ) Honorable ELVIS HERNANDEZ-PERNALETE, ) Kelly McCarthy, ) Judge, Presiding. Defendant-Appellant. )

JUSTICE C.A. WALKER delivered the judgment of the court. Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s denial of pretrial release where Appellant was brought before a judge for his first appearance without unnecessary delay.

¶2 Appellant-Defendant Elvis Hernandez-Pernalete appeals from the circuit court’s denial of

pretrial release pursuant to article 110 of the Code of Criminal Procedure of 1963 (725 ILCS 5/art.

110 (West 2022)), as recently amended by Public Acts 101-652, § 10-255 and 102-1104, § 70 (eff.

Jan. 1, 2023) and commonly referred to as the Safety, Accountability, Fairness and Equity-Today

(SAFE-T) Act or Pretrial Fairness Act (Act). Hernandez-Pernalete contends that he was not

brought before a judge within 48 hours of his arrest in violation of the Act. Although the Act does No. 1-24-0734B

not provide a remedy for such violation, Hernandez-Pernalete requests this court reverse the circuit

court’s denial of pretrial release and remand the case for a hearing on least restrictive conditions

of release or, in the alternative, remand the case for a new detention hearing with instructions to

exclude his police statement. For the following reasons, we affirm the circuit court’s judgment.

¶3 I. BACKGROUND

¶4 Hernandez-Pernalete was charged with the offenses of criminal sexual assault, aggravated

battery premised on strangulation, and robbery during an incident occurring on March 16, 2024,

and the offense of attempted robbery in a separate incident that occurred on the same day.

Hernandez-Pernalete was arrested on March 18, 2024, at 5:07 p.m. He invoked his right to remain

silent and asked for an attorney. He later gave a statement to the police on March 20 at 7:20 a.m.,

and the state’s attorney’s office approved the charges that afternoon. 1 Hernandez-Pernalete was

brought before a judge for his initial appearance on March 21 at 11:55 a.m. In total, Hernandez-

Pernalete was in custody for almost 67 hours before his first appearance.

¶5 The State filed a petition for pretrial detention. During the detention hearing, the State

proffered the following facts. On March 16, 2024, at 8 p.m., the complainant was exiting the

Chicago Transit Authority (CTA) Blue Line at the University of Illinois Chicago (UIC) Halsted

station. CTA and UIC footage captured Hernandez-Pernalete following the complainant out of the

train station. The complainant reported that, once they reached a bridge outside of the station,

Hernandez-Pernalete wrapped his arms around her neck and torso from behind her, maneuvered

her to the ground with his arms, and choked her while using his legs to hold her down. The

complainant passed out, and Hernandez-Pernalete flipped her on her stomach and hunched her

1 The State’s memorandum provides “the State’s Attorney’s Office approved the charges that afternoon,” and the supplemental document attached to Hernandez-Pernalete’s notice of appeal provides “an assistant state’s attorney approved the charges at 1:35 p.m.”

2 No. 1-24-0734B

back. He then removed her bracelet and rings. The complainant reported that she felt Hernandez-

Pernalete’s hands on her butt and finger apply “pressure” into her vagina. Hernandez-Pernalete

informed police that he thought he killed the complainant and was attempting to move her body.

A witness saw Hernandez-Pernalete on top of the complainant and later positively identified

Hernandez-Pernalete as the suspect in a line-up. The witness believed Hernandez-Pernalete was a

migrant and went to a migrant shelter. A security guard at the shelter was shown the CTA footage

around the time of the incident. The security guard identified Hernandez-Pernalete in the still

photos from the footage. Hernandez-Pernalete was “well-known” to the security guard and had

been a resident at the shelter since November. The police recovered an outfit from Hernandez-

Pernalete’s belongings that he was seen wearing on the CTA footage.

¶6 Another complainant believed someone was following her as she headed home from the

Blue Line at the Irving Park station on March 16, 2024, at 11 p.m. CTA surveillance footage

captured the complainant and Hernandez-Pernalete around that time. The complainant got to her

apartment and went to unlock the front gate. Hernandez-Pernalete then grabbed her from behind

and pulled her to the ground. Observing the incident, a neighbor began yelling and Hernandez-

Pernalete ran off. The complainant later spoke to the police. She identified Hernandez-Pernalete’s

jacket recovered from his belongings after his arrest and reported he was wearing a pair of jeans

that was confirmed from the CTA footage and recovered from his belongings. The CTA footage

revealed that Hernandez-Pernalete was wearing the same outfit during both incidents. Hernandez-

Pernalete admitted that he “tried to rob the little woman in Irving Park. He forced her to the ground

but got spooked off by her neighbor and then ran off.”

¶7 In mitigation, defense counsel questioned the visibility of the video footage and the

reliability of the witnesses’ identifications. Counsel then addressed Hernandez-Pernalete’s

background. He is 28 years old and has resided in a shelter for the past five months. He was born

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in Venezuela, attended high school there, and served in the Venezuelan Army for five months.

Hernandez-Pernalete regularly attends church, and his public safety assessment score was

relatively low at a level 3. Counsel argued that the Global Positioning System or electronic

monitoring could mitigate any potential safety risk to the complainants and the community.

¶8 Defense counsel also asserted that Hernandez-Pernalete was not brought before a judge

within 48 hours of his arrest in violation of the Pretrial Fairness Act. Counsel requested that the

circuit court not consider Hernandez-Pernalete’s statement to police as a consequence of the

statutory violation. The State argued that Hernandez-Pernalete was brought to court at the first

available time and that no court was in session on March 20, 2024, the day the 48-hour period

expired. The State claimed that the court should not suppress Hernandez-Pernalete’s statement

because it was made within the 48-hour period and such claim was appropriate for later

suppression proceedings. The State contended that even if there was a violation, the statute does

not provide a remedy and “the remedy would not be to deny the petition.” Defense counsel

responded that, although case law provides “some leeway” for the 48-hour statutory requirement,

Hernandez-Pernalete was not brought before a judge at the first available time because he made

his statement at 7:20 a.m. and the court was in session at 11:30 a.m. that day. Counsel believed

Hernandez-Pernalete’s time in custody pressured him to make a statement after he initially invoked

his Miranda rights and asked for an attorney.

¶9 The circuit court determined there was no violation of the Pretrial Fairness Act. In so

holding, the court found the police were “actively investigating two very serious cases” and that

“[i]nterrogation was still happening and a statement was generated.” Such ongoing investigation

constituted reasonable delay under the Act. The court stated, while court was in session on the day

Hernandez-Pernalete gave his statement, “we do have procedural cut offs for when people could

be brought to court here timewise” and “last night court was not in session.” Moreover, “[t]here

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are procedures that the prosecutors have to go through at that point in terms of getting approval of

charges, what the charges will be.” The court further held the State satisfied its burden of proving

by clear and convincing evidence that Hernandez-Pernalete should be detained and denied pretrial

release.

¶ 10 II. JURISDICTION

¶ 11 The circuit court denied pretrial release on March 21, 2024. Hernandez-Pernalete appealed

on April 2, 2024. We have jurisdiction to review the court’s order pursuant to article VI, section 6

of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 604(h)

(eff. Dec. 7, 2023).

¶ 12 III. ANALYSIS

¶ 13 On appeal, Hernandez-Pernalete does not raise any challenges to the circuit court’s denial

of pretrial release based on the evidence of his safety risk. Hernandez-Pernalete solely argues that

he was not brought without unnecessary delay before the nearest and most accessible judge within

48 hours after his arrest in violation of section 109-1(a) of the Pretrial Fairness Act (725 ILCS

5/109-1(a) (eff. Jan. 1, 2023). He claims that the ongoing police investigation and subsequent filing

of charges did not justify his 67-hour delay. He admits that the statute does not provide a remedy

for such violation and requests this court reverse the circuit court’s denial of pretrial release and

remand the case for a hearing to determine least restrictive conditions of release or, in the

alternative, remand the case for a new detention hearing with instructions to exclude his police

statement.

¶ 14 The State acknowledges that Hernandez-Pernalete was first brought before a judge more

than 48 hours after his arrest but claims there is no violation of section 109-1(a) where his court

appearance on March 21, 2024, was reasonably prompt and without unnecessary delay. The State

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argues, even if a violation occurred, neither pretrial release nor suppression of his police statement

is the appropriate remedy.

¶ 15 This issue presents a question of statutory interpretation. The primary objective of statutory

interpretation is to ascertain and give effect to the legislature’s intent. People v. Gutman, 2011 IL

110338, ¶ 12. The most reliable indicator of legislative intent is the language of the statute, given

its plain and ordinary meaning. Id. This court views the statute as a whole construing words and

phrases in light of other relevant statutory provisions and not in isolation. Id. Each word, clause,

and sentence of a statute must be given a reasonable meaning, if possible, and should not be

rendered superfluous. Id. The court may consider the reason for the law, the problems sought to

be remedied, the purposes to be achieved, and the consequences of construing the statute one way

or another. Id. We presume that the legislature did not intend to create absurd, inconvenient, or

unjust results. Id. Statutory interpretation is a question of law, and our review is de novo. Id.

¶ 16 Section 109-1(a) provides:

“A person arrested with or without a warrant for an offense for which pretrial release may

be denied under paragraphs (1) through (6) of Section 110-6.1 shall be taken without

unnecessary delay before the nearest and most accessible judge in that county, except when

such county is a participant in a regional jail authority, in which event such person may be

taken to the nearest and most accessible judge, irrespective of the county where such judge

presides, within 48 hours, and a charge shall be filed.” 725 ILCS 5/901-1(a) (eff. Jan. 1,

2023).

¶ 17 In People v. Ballard, 206 Ill. 2d 151 (2002), our supreme court construed the phrase

“without unnecessary delay” under a prior version of section 109-1(a). The question before the

court was whether delay in bringing the defendant before the court contributed to the voluntariness

of his confession. Id. at 176. In its analysis, the court explained that section 109-1(a) allows “some

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latitude” in determining whether unnecessary delay occurred and “[p]resentment to a judge need

be performed only with such reasonable promptness as the circumstances permit.” Id. at 177.

¶ 18 The court further observed:

“once a defendant in lawful custody knowingly waived his or her Miranda rights and

indicated a willingness to talk to police, section 109-1(a) does not obligate police to

interrupt their interrogation as long as its length is not unreasonable, and the defendant’s

statements continue to be voluntary. The delay involved in taking a voluntary statement

from a defendant under these circumstances is necessary within the meaning of section

109-1(a). [Citations.] The legislative directions that an accused be presented to a judge

without unnecessary delay cannot mean that police officers must forsake all other duties to

comply, and neither can they mean that the police do not have reasonable latitude to fully

investigate a crime.” (Internal quotation marks omitted.) Id. at 178.

¶ 19 This court continues to follow Ballard’s interpretation of “without unnecessary delay” after

section 109-1(a) was amended to include the 48-hour requirement. See People v. Williams, 2024

IL App (1st) 232219-U, ¶ 30 (“[w]hile we recognize that since the passage of the Pretrial Fairness

Act the statute has been amended to include a 48-hour deadline, we believe that the continued

inclusion of the ‘without unnecessary delay’ language signals the legislature’s intent to permit for

‘some latitude’ in fulfilling that deadline”); People v. Garduno, 2024 IL App (1st) 240405-U, ¶¶

12-13 (applying Williams interpretation of “without unnecessary delay”).

¶ 20 Considering this precedent, we find no violation of section 109-1(a). Hernandez-Pernalete

was arrested on March 18, 2024, at 5:07 p.m. He initially invoked his right to remain silent and

asked for an attorney but later gave a statement to the police on March 20 at 7:20 a.m. At this

point, the police had to process the statement and evaluate his charges. The state’s attorney’s office

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approved the charges on the afternoon of March 20. Hernandez-Pernalete was brought before a

judge for his initial appearance on March 21 at 11:55 a.m.

¶ 21 Hernandez-Pernalete argues that he was not brought before a judge at the first available

time because he gave his statement to police before the courthouse opened on March 20. However,

this contention is rebutted by the record. The charges were not approved until the afternoon of

March 20. The circuit court further stated that it has “procedural cut offs for when people could be

brought to court here timewise” and “last night court was not in session.” Given this, the first

available time did not occur until Hernandez-Pernalete was brought before a judge on March 21.

Hernandez-Pernalete does not provide any evidence that contradicts the circuit court’s findings.

¶ 22 Hernandez-Pernalete further contends that it is unnecessary to delay his court appearance

for the State to process charges when it “has wide latitude to amend, change, or dismiss charges at

future proceedings.” This argument fails to consider the implication of Hernandez-Pernalete’s

police statement. Once Hernandez-Pernalete made statements to police, it logically follows that

the police would need to process the statement and evaluate the charges in light of this new

evidence. Section 109-1(a) does not foreclose the police’s duty to comply with procedures and

fully investigate a crime. See Ballard, 206 Ill. 2d at 178. The delay in filing the charges was

reasonable under these circumstances.

¶ 23 Hernandez-Pernalete asserts that ongoing police investigation does not justify delaying his

court appearance. Relying on Country of Riverside v. McLaughlin, 500 U.S. 44 (1991), he claims

that the 48-hour requirement already “contemplated the realities of gathering evidence, processing

suspects, transport, and other practical challenges to bringing individuals to court.” He further

asserts that, under McLaughlin, delay is unreasonable where it occurs for the purpose of gathering

additional evidence to justify the arrest, is motivated by ill will against the arrested individual, or

is “delay for delay’s sake.”

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¶ 24 We find McLaughlin distinguishable. The record does not show that the police were

obtaining Hernandez-Pernalete’s statement as to justify his arrest, particularly where the police

already had eyewitness identifications and video footage surrounding the incident. Furthermore,

the record is devoid of any evidence of ill will against Hernandez-Pernalete and there was no

“delay for delay’s sake” where the delay was attributed to his statement.

¶ 25 We hold there was no violation of section 109-1(a). In Ballard, our supreme court held that

section 109-1(a) requires presentment before a judge “only with such reasonable promptness as

the circumstances permit” and police are given “reasonable latitude” to process and investigate a

crime. In this case, Hernandez-Pernalete reinitiated contact with police and gave a statement that

the police had to process and evaluate in filing charges. Although the State approved the charges

before the expiration of the 48-hour period, the circuit court stated there were “procedural cut offs”

when bringing arrestees before the court and night court was not in session on March 20. Without

any evidence to the contrary, we find Hernandez-Pernalete was brought before a judge with

reasonable promptness and without unnecessary delay in accordance with section 109-1(a). In light

of our disposition, we need not address Hernandez-Pernalete’s argument concerning the

appropriate remedy for a section 109-1(a) violation because we find no violation.

¶ 26 IV. CONCLUSION

¶ 27 We affirm the circuit court’s denial of pretrial release.

¶ 28 Affirmed.