People v. Holmes

2024 IL App (1st) 240747-U

Opinion

2024 IL App (1st) 240747-U

No. 1-24-0747B

THIRD DIVISION June 26, 2024

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 MC1 101870 ) DE KWON HOLMES, ) Honorable ) Ankur Srivastava, Defendant-Appellant. ) Judge, Presiding.

JUSTICE D. B. WALKER delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s order granting pretrial release with the condition of home confinement.

¶2 Defendant De Kwon Holmes appeals the trial court’s order granting him pretrial release

with the condition of home confinement. On appeal, defendant contends that (1) the State failed to

show by clear and convincing evidence that conditions of pretrial release were necessary in this

case, (2) the trial court failed to take into account factors set forth in 725 ILCS 5/110-5(a) (West No. 1-24-0747B

2022) in determining whether conditions of pretrial release were necessary to ensure defendant’s

appearance in court, and (3) less restrictive conditions of release were available that would have

reasonably ensured his appearance in court. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Defendant was charged with the offense of unlawful use of a weapon. A public safety

assessment prepared by pretrial services found that defendant scored a 4 out of 6 on the “new

criminal activity” scale, and a 4 out of 6 on the “failure to appear” scale. The report recommended

release with pretrial supervision “Level 3.” The State filed a petition to detain defendant pending

trial pursuant to section 110-6.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

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

¶5 At the hearing on the petition, the trial court addressed defendant’s outstanding warrant

from Kane County for driving with a suspended license. The court noted that defendant was

required to post $175 for release in that case, and if he could not post that amount, Kane County

would have five days to retrieve him. If, after five days, defendant remains in Cook County, the

trial court would give him a court date on that charge.

¶6 Regarding defendant’s “new charges,” the trial court noted that he was charged with the

offense of unlawful use of a weapon. The State proffered the following as the basis of its petition

on that charge: On March 20, 2024, around 6:20 p.m., police officers observed defendant in a

vehicle on 90th Street in Chicago, arguing with a bystander. An officer observed defendant point

a black L-shaped object out of the window at the bystander. As defendant started to drive away,

1 Public Act 101-652 (eff. Jan. 1, 2023), which amended article 110 of the Code, is commonly known as the Pretrial Fairness Act or the SAFE-T Act. Neither name, however, is the official title of the legislation. See Rowe v. Raoul, 2023 IL 129248, ¶ 4.

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officers checked with the bystander and then pursued defendant’s vehicle. After defendant’s

vehicle was curbed, officers spoke with him. A front seat passenger was also in the vehicle.

¶7 Officers asked defendant if there were firearms in the vehicle, and he answered that one

was under the front seat. Police recovered an uncased, loaded semi-automatic Glock, with one live

round in the chamber and a laser attachment. Defendant did not have a F.O.I.D. card or a conceal

and carry license. Defendant had “no background, other than the [Kane County] warrant.”

However, defendant did have “a failure to appear out of Kane County *** on 5-13-2022.”

¶8 As mitigation, defense counsel stated that defendant was a 21-year-old high school

graduate who has been living in Cook County for the last five months. He has a child, and they

live with a roommate. For the past five or six months, defendant has been working part time as a

supervisor at UPS. Noting the current charge, which lacked allegations of violence, and

defendant’s background with no new criminal activity, counsel asked for release with “the least

restrictive conditions.”

¶9 The trial court found it “troubling” that defendant possessed a loaded Glock firearm with

a live round in the chamber, and then pointed it at a bystander. The court noted that defendant also

had an outstanding warrant. The court took the outstanding warrant into account even though it

was not for a violent offense. It also considered the “significant” mitigation evidence presented by

defense counsel. The court found that release with pretrial supervision “Level 1” was appropriate.

Defendant would report to a pretrial officer as directed, and would be placed on a curfew, with a

device, between 6:00 p.m. and 6:00 a.m. However, defendant was authorized “to work or go to

school, subject to verification by Pretrial Services.” The court also ordered that defendant not

possess a firearm or weapon. The court stated that, after balancing the factors, these conditions

were the least restrictive it could impose.

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¶ 10 Defendant now appeals.

¶ 11 III. ANALYSIS

¶ 12 Section 110-6.1(e) of the Code provides that “[a]ll defendants shall be presumed eligible

for pretrial release.” 725 ILCS 5/110-6.1(e) (West 2022). In order to detain a defendant, the State

must show, by clear and convincing evidence, that (1) the proof is evident or the presumption great

that the defendant has committed a detainable offense, (2) the defendant poses a real and present

threat to the safety of any person or the community based on the specific facts of the case, and (3)

no conditions or combination of conditions exist that can mitigate this threat or defendant’s willful

flight. Id.

¶ 13 Here, the trial court denied the State’s petition to detain defendant. However, it ordered

defendant’s release with the condition of home confinement with a device. The only issue on

appeal is whether the trial court erred in imposing this condition of release.

¶ 14 Although disagreement exists among the appellate districts regarding the applicable

standard of review, we believe an abuse of discretion standard is appropriate here. Section 110-5,

which addresses the trial court’s determination of conditions of release, gives the court broad

discretion to consider various factors when making its determination. See People v. Dunn, 2024

IL App (1st) 240306-U, ¶ 32; see also People v. Reed, 2023 IL App (1st) 231834, ¶ 31 (finding

that when courts are tasked with weighing and balancing multiple factors, they are “endowed with

considerable discretion”). A trial court abuses its discretion if the court’s decision is arbitrary,

fanciful, or unreasonable, or if no reasonable person would agree with the court. People v. Becker,

239 Ill. 2d 215, 234 (2010).

¶ 15 Section 110-5 provides, in relevant part:

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“(a) In determining which conditions of pretrial release, 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,

the court shall, on the basis of available information, take into account such matters as:

(1) the nature and circumstances of the offense charged;

(2) the weight of the evidence against the defendant, except that the court may

consider the admissibility of any evidence sought to be excluded;

(3) the history and characteristics of the defendant, including:

(A) 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, history, criminal history, and

record concerning appearance at court proceedings; and

(B) 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 an offense under federal law, or the law of this or any

other state;

***

(c) The court shall impose any conditions that are mandatory under subsection (a) of

Section 110-10. The court may impose any conditions that are permissible under subsection

(b) of Section 110-10. The conditions of release imposed shall be the least restrictive

conditions or combination of conditions necessary to reasonably ensure the appearance of

the defendant as required or the safety of any other person or persons or the community.

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(g) Electronic monitoring, GPS monitoring, or home confinement can only be imposed as

a condition of pretrial release if a no less restrictive condition of release or combination of

less restrictive condition of release would reasonably ensure the appearance of the

defendant for later hearings or protect an identifiable person or persons from imminent

threat of serious physical harm.” 725 ILCS 5/110-5 (a), (c), (g) (West 2022).

¶ 16 Defendant first argues that the State failed to meet its burden by clear and convincing

evidence that any condition of pretrial release was required in this case. He contends the State

never argued that home confinement was necessary, or why a less restrictive condition, such as

pretrial monitoring or supervision, could not ensure his appearance in court or the public’s safety.

¶ 17 According to the plain language of section 110-5, it is the trial court that determines which

conditions to impose, if any, “on the basis of available information” and considering the listed

factors. Accordingly, the mere fact that “the State did not request a specific condition of release

does not mean that there is not clear and convincing evidence to support the trial court’s

determination to impose one.” Dunn, 2024 IL App (1st) 240306-U, ¶ 26.

¶ 18 Defendant also contends that clear and convincing evidence did not support the trial court’s

decision where the court failed to consider a number of factors set forth in section 110-5(a),

specifically that this was his first arrest, he is a high school graduate, he moved to Chicago with

his young daughter, and he has been working as a supervisor at UPS. Defendant’s contention,

however, is belied by the record. At the hearing on the State’s petition, defense counsel argued for

the “least restrictive conditions” where defendant was a 21-year-old high school graduate living in

Cook County with his child for the last five months and he has been working part time as a

supervisor at UPS. Counsel also emphasized defendant’s background with no new criminal

activity. In deciding to impose conditions of release, the trial court stated that it considered “the

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mitigation your attorney presented ***, which is significant.” It is clear that the trial court

considered defendant’s mitigation evidence.

¶ 19 Defendant’s final argument is that, given this mitigation evidence, the trial court erred in

finding that home confinement was the least restrictive condition of release available for him. He

argues that his minimal criminal history, lack of a violent background, and strong ties to the

community show that he would abide by the court’s orders. Furthermore, defendant is the sole

provider for his young child and works from 10 p.m. to 3 a.m. as a supervisor at UPS. He argues

that the court-imposed condition of home confinement between 6 p.m. and 6 a.m. would prevent

him from working.

¶ 20 The record shows that the trial court balanced the mitigation evidence with evidence that

defendant, who did not have a F.O.I.D. card or conceal and carry license, kept a loaded semi-

automatic Glock firearm in his vehicle. The State’s proffer also indicated that defendant was

driving his vehicle around 6:20 p.m. when he had an argument with a bystander, and then pointed

the loaded firearm at the bystander. The court found these facts ‘troubling” and “concerning.” See

725 ILCS 5/110-6.1(g)(7) (West 2022) (stating that whether a defendant possesses or has access

to weapons is a factor to consider when ascertaining his or her dangerousness); see also People v

Ross, 229 Ill. 2d 255, 275 (2008) (noting that a trier of fact may reasonably infer that a loaded

firearm is a dangerous weapon). The court further considered the fact that defendant had an

outstanding warrant. See 725 ILCS 5/110-5(a)(3) (West 2022) (authorizing the court to “take into

account” defendant’s history and record regarding court appearances when determining conditions

of release). Additionally, in imposing the conditions of release, the court stated that defendant was

“authorized to work or go to school, subject to verification by Pretrial Services.” Therefore, the

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court’s order of home confinement with a device from 6 p.m. to 6 a.m. would not prevent defendant

from working his 10 p.m. to 3 a.m. shift at UPS.

¶ 21 Home confinement may be imposed as a condition of release only if “no less restrictive

condition of release or combination of less restrictive condition of release would reasonably ensure

the appearance of the defendant for later hearings or protect an identifiable person or persons from

imminent threat of serious physical harm.” 725 ILCS 5/110-5(g) (West 2022). Defendant argues

that a less restrictive condition of release requiring him to remain in consistent communication

with the court would suffice to ensure that he abides by court orders. His history, however, does

not support his argument. Defendant has shown a willingness to disregard his legal obligations as

evidenced by his outstanding warrant and failure to appear in the Kane County case. Just as

concerning is the fact that he possessed a loaded firearm with a laser attachment without a F.O.I.D.

card or a license and pointed it at a bystander on the street. The trial court properly took these

factors into account when it imposed the condition of home confinement for defendant’s release.

¶ 22 We note that the trial court will reconsider defendant’s conditions of release at subsequent

proceedings. See 725 ILCS 5/110-5(f-5) (West 2022) (providing that “[a]t each subsequent

appearance of the defendant before the court, the judge must find that the current conditions

imposed are necessary”). As such, defendant will have the opportunity to raise the issue of less

restrictive conditions in the future. We find, however, that based on the record as it stands, the trial

court’s decision to impose home confinement from 6 p.m. to 6 a.m. as the least restrictive condition

of release was not an abuse of discretion.

¶ 23 IV. CONCLUSION

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 25 Affirmed.

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