NOTICE 2025 IL App (4th) 241333-U FILED This Order was filed under January 14, 2025 Supreme Court Rule 23 and is NOS. 4-24-1333, 4-24-1334 cons. not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County ROBERT KAY, ) Nos. 23CF1507 Defendant-Appellant. ) 24CF1388 ) ) Honorable ) John T. Gibbons, ) Judge Presiding.
JUSTICE GRISCHOW delivered the judgment of the court. Justices Steigmann and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed in part and dismissed in part, concluding (1) in appeal No. 4-24-1333, (a) the trial court’s oral ruling granting the State’s petition to revoke defendant’s pretrial release did not violate the Pretrial Fairness Act and (b) the court did not abuse its discretion by determining the State met its burden of demonstrating there was no condition or combination of conditions that could mitigate the threat defendant posed and (2) appeal No. 4-24-1334 is dismissed because the State only filed a petition to revoke pretrial release in one of defendant’s two felony cases.
¶2 Defendant, Robert Kay, appeals the trial court’s order entered June 6, 2024,
granting the State’s petition to revoke pretrial release pursuant to article 110 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/110-1 et seq. (West 2022)), hereinafter as
amended by Public Act 101-652, § 10-255 (eff. Jan. 1, 2023), commonly known as the Pretrial
Fairness Act (Act). See Pub. Act 102-1104, § 70 (eff. Jan. 1, 2023) (amending various provisions
of the Act); Rowe v. Raoul, 2023 IL 129248, ¶ 52 (setting the Act’s effective date as September 18, 2023). For the reasons that follow, we affirm in part and dismiss in part.
¶3 I. BACKGROUND
¶4 A. Defendant’s Initial Charges and Pretrial Release
¶5 On June 26, 2023, defendant was charged by criminal complaint in case No. 23-
CF-1507 with unlawful use or possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West
2022)) and aggravated unlawful use of a weapon without a valid firearm owner’s identification
card (id. § 24-1.6(a)(1), (3)(C)). According to the police report supporting the complaint, a
Rockford police officer found defendant asleep on playground equipment at Blackhawk Park with
a handgun (later determined to be loaded) next to him and two knives on his person. On June 27,
2023, the trial court found probable cause to detain defendant but granted him bail with standard
pretrial release conditions. On July 21, 2023, defendant was charged by bill of indictment with
being an armed habitual criminal (id. § 24-1.7(a)) for having knowingly possessed a firearm after
having been convicted of aggravated battery with a firearm in 1994 and home invasion in 2008
(count I) and unlawful use of weapons by a felon (id. § 24-1.1(a)) (count II).
¶6 B. Defendant’s New Felony Case While on Pretrial Release
¶7 On June 5, 2024, while on pretrial release in the aforementioned case, defendant
was charged by criminal complaint, in case No. 24-CF-1388, with felony burglary (id. § 19-1(a)).
According to the police report supporting the complaint, a Rockford police officer responded on
June 4, 2024, to a report of a burglary at a storage unit. An employee of the storage facility reported
viewing surveillance video of the premises and observing the suspect to be a Black male driving a
silver SUV. The suspect arrived at the facility, walked up the stairs, walked down the stairs with a
black TV with LED lights around it and a sound bar, and drove away. The owner of the storage
unit responded to the scene and reported that the lock on her unit was gone, as was her 65-inch
-2- black TV, LED lights, and sound bar. The officer viewed the surveillance video. The officer
observed a Black male arrive at the west side of the facility in a silver SUV, enter the facility, and
walk down the aisle where this particular unit was located. According to the officer, “The male
then walked back holding a black TV with LED lights around it and a sound bar. The male walked
back toward the west doors and left in the SUV with the items.” After learning the suspect used a
particular code three times to enter the facility and that this code belonged to the suspect’s
girlfriend, the officer called her to inform her of the incident. She stated she owned a silver
Mitsubishi SUV and “advised she would try to contact [defendant] to try to retrieve the stolen
items.” Thereafter, defendant called the officer and, after initially claiming he did not steal the
items, later “stated the TV that he took was sold to an unknown person somewhere on Blaisdell
St., but he did not have the address.” Defendant called back and “advised his friend sold the TV to
a Mexican guy on Blasdell [sic] St.” Officers subsequently met with this individual, who “advised
he purchased a TV with LED lights on it on 06/03/24 at about 2200 hours from two black males,”
one of whom “had a long white beard.” Officers then interviewed defendant, who “advised he took
the TV and sound bar from the [storage] facility but that he found it in the hallway” and later sold
the items “to a Mexiacan [sic] guy for $200.00.”
¶8 On June 5, 2024, the trial court found probable cause to detain defendant in case
No. 24-CF-1388 but granted him pretrial release with, inter alia, a condition for him to have no
contact with the storage facility. The same day, the State filed a petition to revoke defendant’s
pretrial release in case No. 23-CF-1507 pursuant to section 110-6(a) of the Code (725 ILCS 5/110-
6(a) (West 2022)) due to being charged with burglary while on pretrial release in that case.
¶9 C. The Hearing on the State’s Petition to Revoke Pretrial Release
¶ 10 On June 6, 2024, the trial court held a hearing on the State’s petition to revoke
-3- pretrial release. The court began by confirming with both the State and defendant’s counsel that
the petition before it was filed only in case No. 23-CF-1507, not case No. 24-CF-1388. After taking
judicial notice of the State’s proffers in support of its petition (namely, “the court file in 24 CF
1388 including the probable cause statement” pertaining to the burglary charge and “the court file
in 23 CF 1507 including the factual summary as well as the court status reports”), the court asked
if defendant’s counsel wanted to present any evidence in support of pretrial release. Defendant’s
counsel stated defendant and his girlfriend rent a unit at the storage facility. Defendant and his
girlfriend were homeless, and defendant was going to the storage facility “to use the restroom” on
the night of the incident. Counsel also stated defendant’s girlfriend had medical issues preventing
her from driving, so defendant “would like to be out in order to support her and get her to medical
appointments, things of that nature.”
¶ 11 The trial court then heard argument from the State and defendant’s counsel. The
State emphasized defendant was “out on pretrial release for a serious gun offense where he’s facing
prison time” when he was charged with burglary. The State asserted defendant “has not been
compliant with the pretrial services,” specifically, he has “been non-compliant with reporting after
court,” and they have been unable to “maintain contact with him.” The State noted defendant’s
physical appearance is consistent with the description given by the individual who purchased the
items from defendant. The State contended there was clear and convincing evidence defendant
committed the offense and there was “no condition or combination of conditions that would assure
his appearance and that would prevent him from being charged with a subsequent felony or Class
A Misdemeanor.”
¶ 12 Regarding the facts of the first case, defendant’s counsel contended defendant “was
essentially asleep in a park next to a gun, so not threatening anyone, not being violent with anyone,
-4- not causing any problems.” Regarding the facts of the second case, counsel contended they
possibly amounted to “theft of mislaid property, but *** not a burglary case.” Counsel argued
“defendant has been compliant with reporting to pretrial” according to the pretrial services report
and “has shown up to every single court date since he’s been out of custody.” Counsel proposed
the court could impose additional conditions, such as “perhaps a curfew, *** although, admittedly
that would be difficult with [defendant] being homeless,” and asserted the State had not met its
burden of demonstrating there are no conditions that could prevent defendant from committing
another offense. In response, the State noted that even assuming, arguendo, defendant was only
guilty of theft of mislaid property, “it is still a Class A or higher offense that *** [he] committed.”
¶ 13 The trial court stated it “believe[d] there was absolutely sufficient probable cause”
to support the burglary charge. The court acknowledged defendant had been noncompliant with
reporting to pretrial services and “has a[n] extensive criminal history spanning the better part of
three decades,” including convictions for “[h]ome invasion, aggravated battery with a firearm,
possession with intent to deliver cocaine, resisting a peace officer,” and “retail theft.” The court
then considered whether appropriate conditions of pretrial release could be imposed. The court
found the State had proven by clear and convincing evidence that no combination of conditions
would prevent defendant from being charged with another offense and granted the petition to
revoke (PTR) defendant’s pretrial release. The court’s written order stated, “The State’s PTR in
23CF1507 is heard and granted for the reasons set forth on the record.”
¶ 14 D. The Hearing on Defendant’s Motion for Relief
¶ 15 On August 5, 2024, defendant filed a “Motion for Relief Under the [Act]” (Motion
for Relief). Defendant argued the State failed to meet its burden of proving by clear and convincing
evidence that no condition or combination of conditions of release could be imposed which would
-5- reasonably ensure his appearance at later hearings or prevent him from being charged with a
subsequent offense. Defendant asserted he was compliant with pretrial services reporting at the
time of the burglary offense. Additionally, his last felony conviction was in 2008. In sum,
defendant argued, “Given [defendant’s] ability to keep himself out of trouble for extended periods
of time and his compliance with pre-trial services, there are conditions or a combination of
conditions that would reasonably prevent [him] from being charged with a subsequent felony or
Class A misdemeanor.” Defendant also argued neither of his two pending felony cases involved
“crimes of violence” and he was “cooperative and assisted police in locating the [TV] alleged to
have been taken in the [burglary] case.” Furthermore, defendant has been driving his girlfriend
“wherever she needs to go” given her medical conditions affecting her ability to drive. Finally,
defendant asserted the trial court “failed to comply with the Act,” specifically, its requirement that
“ ‘any order for detention’ ” must “include a summary of its reasons for denying the defendant
pretrial release.”
¶ 16 On August 6, 2024, the trial court held a hearing on defendant’s Motion for Relief.
Defendant’s counsel began by noting defendant reportedly had a job offer from a local landscaping
company. Counsel then argued defendant was last released from prison in 2012 and “hadn’t picked
anything up until the 1507 case,” in which “he was found asleep next to a firearm, so not
brandishing it or threatening anyone or being violent with anyone.” Counsel then proposed there
were conditions of pretrial release that could ensure defendant would not commit a new offense,
such as that he “get some type of evaluation, that he maintain employment, that he not leave the
state without permission, random drug tests,” and “classes, evaluations, all of that.”
¶ 17 Counsel then noted the trial court’s order granting the State’s petition to revoke
pretrial release did not include a summary of the reasons for why it was granted. The court stated,
-6- “Are you aware of any case or statute that states I have to do a written order on a petition to revoke
pretrial release, and if you are, I’d like to know about that.” Counsel responded that the Act
required “that any order for detention must contain that factual summary.” Since “the plain
language says any order for detention,” counsel believed “that would apply to an order for a
revocation of pretrial release as well.” Counsel conceded he had not found any case imposing such
a requirement for petitions to revoke pretrial release.
¶ 18 The State argued “defendant has a significant criminal record for some pretty
significant crimes,” which the trial court correctly considered in granting its petition to revoke
pretrial release. In response, defendant’s counsel argued defendant has “managed to stay out of
trouble for a very lengthy amount of time,” during which he was employed. Counsel reiterated
defendant has a job offer and needs to take care of his girlfriend.
¶ 19 The trial court found its original decision to be correct and declined to change it,
despite the information about defendant’s forthcoming employment and the assistance he provides
his girlfriend. After observing defendant violated “one of the most basic conditions of pretrial
release” when he was charged with burglary while already on pretrial release, the court reaffirmed
its conclusion that “there were no conditions of release that would prevent him from picking up
another charge.” The court found defendant’s employment would not prevent him from
committing a subsequent offense and did not know of any additional conditions that would. The
court also observed defendant was now ranked “almost near the top of the risk assessment.”
(Defendant was ranked 13, with a maximum possible score of 14.) Accordingly, the court denied
defendant’s Motion for Relief. The court’s written order stated, “The defendant’s motion for relief
is heard and denied for the reasons set forth on the record.”
¶ 20 This appeal followed.
-7- ¶ 21 II. ANALYSIS
¶ 22 In this court, defendant filed a notice in lieu of an appellant memorandum.
Accordingly, defendant rests on the arguments he made in the trial court in his Motion for Relief.
¶ 23 Through its memorandum in response, the State argues the trial court appropriately
made an individualized assessment of whether there were any conditions of pretrial release which
could mitigate the threat defendant posed and did not abuse its discretion in determining there were
none. Defendant was currently charged with illegally possessing a firearm while asleep on
playground equipment in a park and removing someone else’s valuable property from a storage
facility—the latter while on pretrial release for the former. The court noted defendant’s overall
extensive criminal history, which included convictions for aggravated battery with a firearm,
armed home invasion, and possession of cocaine. The State asserts, “These convictions not only
demonstrate a disregard for the law and court orders, but that defendant is constantly willing to
commit crimes when the opportunity arises.” Additionally, defendant has been noncompliant with
his pretrial reporting obligation. Finally, the State argues defendant does not support his contention
that the court’s order was insufficient for not specifying in writing what the court pronounced
orally; nevertheless, “anything put forth on the record orally [would be] sufficient.”
¶ 24 A. The Trial Court’s Oral Ruling Complied With the Act
¶ 25 As an initial matter, defendant asserted the trial court’s written order following the
granting of the State’s petition to revoke pretrial release did not comply with the requirement of
the Code that “any order for detention” include a written summary of the reasons for denying a
defendant pretrial release. 725 ILCS 5/110-6.1(h)(1) (West 2022). As stated above, the court’s
written orders following the hearings on the State’s petition and defendant’s Motion for Relief,
respectively, provided, “The State’s PTR in 23CF1507 is heard and granted for the reasons set
-8- forth on the record,” and “The defendant’s motion for relief is heard and denied for the reasons set
forth on the record.”
¶ 26 Pursuant to section 110-6.1(h)(1) of the Code, the trial court “shall, in any order for
detention:
(1) make a written finding summarizing the court’s reasons for
concluding that the defendant should be denied pretrial release, including
why less restrictive conditions would not avoid a real and present threat to
the safety of any person or persons or the community, based on the specific
articulable facts of the case, or prevent the defendant’s willful flight from
prosecution[.]” Id.
¶ 27 In People v. Thomas, 2024 IL App (4th) 240248, ¶ 21, this court observed that “all
appellate court districts have now recognized that a [trial] court’s oral pronouncements can be
considered in conjunction with its written explanation in assessing the court’s compliance with
section 110-6.1(h)(1).” This court noted, “Indeed, given that the point of requiring a written finding
is to give notice of the reasons for the court’s findings for appellate review, the same purpose is
served when the court’s findings are stated orally.” Id. This court rejects defendant’s contention
that the trial court’s order granting the State’s petition to revoke pretrial release did not satisfy the
requirement of section 110-6.1(h)(1). Reviewing the record of the hearing on defendant’s Motion
for Relief, it is apparent the court was of the view that this statutory requirement technically did
not apply to petitions to revoke pretrial release, as opposed to initial petitions to detain. However,
the court’s order was satisfactory, not because the requirement for a written summary technically
did not apply to it, but because the court’s oral pronouncements were sufficiently detailed to
“provide notice to the parties of the reasons for [its] decision, and *** to preserve this reasoning
-9- for appellate review.” People v. Andino-Acosta, 2024 IL App (2d) 230463, ¶ 19. The court
“articulated its reasons why less restrictive conditions would not avoid the threat to safety” (id.
¶ 20) through a “lengthy—and adequate—explanation in open court” for its decision to revoke
defendant’s pretrial release (People v. Gooden, 2024 IL App (4th) 231523, ¶ 33).
¶ 28 B. No Abuse Of Discretion by Determining There Was No
Condition or Combination of Conditions That Could Prevent
Defendant From Being Charged With a Subsequent Offense
¶ 29 Section 110-6(a) authorizes the revocation of pretrial release granted under the Act
“only if the defendant is charged with a felony or Class A misdemeanor that is alleged to have
occurred during the defendant’s pretrial release after a hearing on the trial court’s own motion or
upon the filing of a verified petition by the State.” 725 ILCS 5/110-6(a) (West 2022). The State
bears the burden of proving by clear and convincing evidence “no condition or combination of
conditions of release would reasonably ensure the appearance of the defendant for later hearings
or prevent the defendant from being charged with a subsequent felony or Class A misdemeanor.”
Id. “In each case, a court must conduct an ‘individualized’ assessment of the propriety of detaining
the defendant versus releasing him or her with conditions. [Citation.] ‘[N]o single factor or
standard may be used exclusively to order detention.’ .” People v. Atterberry, 2023 IL App (4th)
231028, ¶ 15. We review a trial court’s decision regarding pretrial release for an abuse of
discretion. See People v. Jones, 2023 IL App (4th) 230837, ¶ 30. An abuse of discretion will be
found when a decision is arbitrary, fanciful, or unreasonable or when the decision is one with
which no reasonable person would agree. People v. Inman, 2023 IL App (4th) 230864, ¶ 10.
¶ 30 We conclude the trial court did not abuse its discretion by determining there was
no condition or combination of conditions of pretrial release that could prevent defendant from
- 10 - being charged with a subsequent offense. The court “believe[d] there was absolutely sufficient
probable cause” to support the burglary charge, thereby considering both “the nature and
circumstances” of this new charge and “the weight of the evidence against *** defendant.” See
725 ILCS 5/110-5(a)(1)- (2) (West 2022). The court then concluded defendant “overall” had been
noncompliant with reporting to pretrial services, thereby considering his “history and
characteristics,” including his “conduct *** and record concerning appearance at court
proceedings” (see id. § 110-5(a)(3)(A)), and this conclusion was appropriate under the
circumstances. Although the court status report for January 17, 2024, states “defendant has been
compliant with reporting after court,” the next sentence states he “did not report after on
10/04/2023.” The report for March 6, 2024, states defendant “has been non-compliant with
reporting after court” and did not report on either October 4, 2023, or January 17, 2024. The report
for April 3, 2024, states defendant “has been non-compliant with reporting after court,” he failed
to report on February 6, 2024, and his pretrial services officer has been unable to contact him.
Finally, the report for June 4, 2024, states that while defendant reported after court on April 9,
2024, he “has been non-compliant with reporting after court.” These reports reflect defendant
failed to report after court to pretrial services at least three times. The court then noted defendant
“has a[n] extensive criminal history spanning the better part of three decades,” including
convictions for “[h]ome invasion, aggravated battery with a firearm, possession with intent to
deliver cocaine, resisting a peace officer,” and “retail theft,” thereby considering his “criminal
history.” Id.
¶ 31 At the conclusion of the hearing on defendant’s Motion for Relief, the trial court
acknowledged what his counsel relayed regarding his upcoming employment and assisting his
girlfriend, thereby reflecting its consideration of his “family ties” and “employment” (id.), but
- 11 - emphasized he had been charged with a new offense while on pretrial release. The court stated it
did not find defendant’s employment would prevent him from committing a new offense if his
pretrial release was to be extended. Defendant scored a 13 (the second-highest possible score and
in Level 6, the highest level) on the pretrial risk assessment administered after his arrest on the
burglary charge. Among the risk factors with which defendant was positively assessed were being
“Currently under active Community Supervision,” having “Pending charges” at the time of his
arrest, and having “Two or more violent convictions.” Most significant in the court’s reasons for
granting the State’s petition to revoke defendant’s pretrial release was being charged with a new
felony while on pretrial release in a preexisting felony case, thereby reflecting its consideration of
“whether, at the time of the current offense or arrest, [he] was on *** release pending trial *** for
an offense under *** the law of this *** state.” Id. § 110-5(a)(3)(B). We conclude the court’s
decision to revoke pretrial release was not an abuse of discretion, as it was not arbitrary, fanciful,
or unreasonable, or one with which no reasonable person could agree. Inman, 2023 IL App (4th)
230864, ¶ 10.
¶ 32 C. As the State’s Petition to Revoke Pretrial Release Was Only Filed
in Connection With Case No. 23-CF-1507, Appeal No. 4-24-1334
Is Dismissed
¶ 33 Finally, we agree with the State that appeal No. 4-24-1334 should be dismissed.
Defendant is only being detained in case No. 23-CF-1507, the subject of appeal No. 4-24-1333.
Defendant is not being detained in case No. 24-CF-1388, the subject of appeal No. 4-24-1334. As
the State correctly noted, “there is not an issue in 24-CF-1388 that is properly before this court.”
Accordingly, appeal No. 4-24-1334 is dismissed.
- 12 - ¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, in appeal No. 4-24-1333, the trial court’s judgment is
affirmed, and appeal No. 4-24-1334 is dismissed.
¶ 36 No. 4-24-1333, affirmed.
¶ 37 No. 4-24-1334, appeal dismissed.
- 13 -